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STANBIC IBTC BANK v. LONGTERM GLOBAL CAPITAL LTD & ORS (2021)

STANBIC IBTC BANK v. LONGTERM GLOBAL CAPITAL LTD & ORS

(2021)LCN/15577(CA)

In The Court of Appeal

(LAGOS JUDICIAL DIVISION)

On Monday, September 20, 2021

CA/L/1093/2017

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Fatima Omoro Akinbami Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Between

STANBIC IBTC BANK PLC APPELANT(S)

And

1. LONGTERM GLOBAL CAPITAL LIMITED 2. CRC CREDIT BUREAU LIMITED 3. UNION BANK OF NIGERIA PLC RESPONDENT(S)

RATIO:

DEFINITION OF A PRELIMINARY OBJECTION

A preliminary objection is a specie of objection which, if sustained by a Court, will render further proceedings in a matter unnecessary, see Abe v. Unillorin (2013) 16 NWLR (Pt. 1379) 183; APC v. INEC (2015) 8 NWLR (Pt. 1462) 531; Jim-Jaja v. C.P, Rivers State (2013) 6 NWLR (Pt. 1350) 225. For this reason, the law commands the Court to deal first with a preliminary objection when raised in any proceedings, see Uwazurike v. A.G., Fed. (2007) 8 NWLR (Pt. 1035) 1; B.A.S.F. (Nig.) Ltd v. Faith Enterprises Ltd. (2010) 4 NWLR (Pt. 1183) 104; SPDCN Ltd v. Amadi (2011)14 NWLR (Pt. 1266) 157; FBN Plc v. T.S.A. Ind. Ltd (2010) 15 NWLR (Pt. 1216) 247; Okereke v. James (2012) 16 NWLR (Pt. 1326) 339; APC v. INEC (Supra); Ogboru v. Uduaghan (2013) 1 NWLR (Pt. 1311) 357; Efet v. INEC (2011) 7 NWLR (Pt. 1247) 423; Sa’eed v. Yakowa (2013) 7 NWLR (Pt. 1352) 133; Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 113; SPDCN Ltd. v. Agbara (2016) 2 NWLR (Pt. 1496) 353; Agbaje v. INEC (2016) 4 NWLR (Pt. 1501) 151; Allanah v. Kpolokwu (2016) 6 NWLR (Pt. 1057) 1; Umanah (Jnr.) v. NDIC (2016) 14 NWLR (Pt. 1533) 458; Esuwoye v. Bosere ​ (2017) 1 NWLR (Pt. 1546) 256; Achonu v. Okuwobi (2017) 14 NWLR (Pt. 1584) 142. I will obey this legal commandment so as not to insult the law. The first respondent (objector) seeks to terminate the appeal in limine. PER OBANDE FESTUS OGBUINYA, J.C.A.

MEANING OF FINAL WRITTEN ADDRESS

Final address connotes “the last or ultimate speech or submission made to the Court in respect of issue before it, before the delivery of judgment. It is the last address before the delivery of judgment”. see Ijebu-Ode L.G. v. Adedeji Balogun & Co. (1991) 1 NWLR (Pt. 166) 136 at 156, per Karibi-Whyte, JSC, Sodipo v. Lemminkainen Oy (1985) 2 NWLR (Pt. 8) 547; Mustapha v. Governor of Lagos State (1987) 2 NWLR (Pt. 58) 539; Kalu v. State (2017) 14 NWLR (Pt. 1586) 522. The caustic effect of denial of addresses to parties vis-a-vis proceedings is wrapped in Ndu v. State (1990) 7 NWLR (Pt. 164) 550, (1990) 21 NSCC (Pt. 3) 505. Therein Akpata, JSC, succinctly, stated:

It is generally accepted that the hearing of addresses from counsel before delivery of judgment is an important exercise in judicial proceedings in our Courts. The entire proceedings may be declared a nullity if a counsel is denied the right to address the Court at the close of evidence.
See also, Obodo v. Olomu (1987) 3 NWLR (Pt. 59) 111/(1987) 2 NSCC, vol. 18, 824 at 831; Niger Construction Co. Ltd. v. Okugbeni (1987) 11/12 SCNJ 113/(1987) 4 NWLR (Pt. 67) 787; Ayisa v. Akanji (1995) 7 NWLR (Pt. 406) 129; Kalu v. State (supra).

Though the right of address, being a constitutional right, is inalienable, it is personal to the party beneficiary. Put simply, once a Court avails a party the right to address it, he can decide to discard it by way of waiver, see Ndu v. State (supra); Ayisa v. Akanji (supra).

It is important to catalogue the gains of final address as contemplated by the sacrosanct provision of Section 294(1) of the Constitution as amended. Address of counsel, though unable to cover lack of evidence, are designed to aid the Courts to appreciate the nature, strength and weakness in the cases of parties. It has the potential to bend the scale of justice in favour of a party who presents scintillating address, laced with alluring lexical dexterity, demonstrative of impregnable advocacy. It is on account of its benefits to the Court that it ranks second in the corpus of the three most important elements of a trial: the first and last being hearing of evidence and judgment respectively, see Okeke v. State (2003) 15 NWLR (Pt. 842) 25; Kalu v. State (supra). PER OBANDE FESTUS OGBUINYA, J.C.A. 

FAILURE OR OMISSION OF THE OATH CLAUSE IN A DEPOSITION IS A MERE IRREGULARITY AND DOES NOT RENDER IT INADMISSIBLE IN EVIDENCE.

Deposition signifies “a statement of a witness made under oath out of Court… Depositions are all matters of procedure as they are adjectival in nature and content”, see Buhari v. INEC (2008) 19 NWLR (Pt. 1120) 246 at 377 and 378, per Tobi, JSC. Indubitably, the admissibility of evidence, of all species, is regulated by the Evidence Act. In Buhari v. INEC (supra), the contest circled around the validity and admissibility of oaths/depositions of witnesses. Tobi, JSC, incisively, outlined four instances that will make an oath inadmissible, namely: if it is sworn before (a) a person on whose behalf the same is offered, (b) his legal practitioner, (c) a partner, (d) a clerk of his legal practitioner. It flows from this ex cathedra authority, a written statement on oath will be inadmissible if it is afflicted with any of the four negative elements adumbrated above. It is not in doubt that the oath of the CW1, which is sought to be expelled, is not plagued by any of these negative elements as to drain it of its validity and admissibility.
That is not all. The selfsame Oaths Law makes allowance for omission or irregularity as to oath under Section 4 thereof. In Section 4(2) (b) and (c), it provides:
(2) No irregularity in the form in which an oath is administered or taken shall –
(b) invalidate proceedings in any Court; or
(c) render inadmissible evidence in or in respect of which an irregularity took place in any proceedings.

In due allegiance to the injunction of the law, I have given a communal/conjunctive reading to the mutually-related provisions of Sections 4 (2) (c) and 11 of the Oaths Law. It is my humble view that the provision of Section 4(2) (c) neutralizes the mandatoriness of the provision of Section 11 of the Oaths Law. Put bluntly, Section 4 (2) (c) douses the effervescent operation of Section 11 of the Oaths Law. That is to say, any irregularity in the form of an oath will not be fatal to the administration of oath under Section 11 of the Oaths Law. PER OBANDE FESTUS OGBUINYA, J.C.A. 

ONCE A COURT HAS MADE A DECISION ON A MATTER, THE COURT IS STRIPPED OF ITS JURISDICTION TO FURTHER ADJUDICATE ON THE SAME MATTER.

There is one tangential point that cries for the attention and resolution by the Court. It borders on the lower Court’s declaration of being functus officio over the consideration of the admissibility of the document – exhibit L2. The Latin expression functus officio simply means, “task performed”. In the realm of adjudication, it implies that a Judex cannot give a decision or make an order on a matter twice. In other words, once a Judge gives a decision or makes an order on a matter, he loses the competence or jurisdiction to give another decision or order on the same matter, see, Mohammed v. Hussein (1998) 11/12 SCNJ 136 at 163 – 164; Olowu v. Abolore (1993) 6 SCNJ (Pt. 1) 1; Inakoju v. Adeleke (2007) 4 NVVLR (Pt. 1025) 427. To do otherwise will be akin to the injudicious act of a Court sitting on appeal over its own decision.
This ageless principle of law accommodates a litany/legion of exceptions. One of the cognisable exemption is deeply, planted in rejection of admitted inadmissible evidence. In the course of proceedings in a Court, trial or appellate a piece of evidence (oral or documentary) may by oversight or inadvertence, be admitted, either in a bench or considered ruling, by a Court and that Court, whether of first instance or appellate, and if it later discovers at the time of judgment, that that particular evidence is at all event/costs inadmissible in law, then it is entitled to reverse its earlier decision admitting that evidence and rejecting it in toto, see National & Properties Co. Ltd. V. Thompson Organisation Ltd. (1969) 1 All NCR 138; Abubakar v. Chuks (2007) 18 NWLR (Pt. 1066) 386; Shanu v. Afribank (Nig.) Plc. (2002) 17 NWLR (Pt. 795) 185. Thus, the appellant’s entreaty to the lower Court to reject the admission of the document, exhibit L2, is properly situated within the perimeter of the known exception to the doctrine of functus officio ex-rayed above.

The law grants a trial Court the unbridled liberty to expunge admitted inadmissible evidence at the judgment stage. An appellate Court enjoys the same right so far as the document is inherently inadmissible. The rationale behind this is simple. A Court of law is drained of the jurisdiction to act on an inadmissible evidence in reaching a decision, see Alade v. Olukade (1976) 2 SC 183; IBWA v. Imano Ltd. (2001) 3 SCNJ 160; Durosaro v. Ayorinde (2005) 8 NWLR (Pt. 927) 407; Namsoh v. State (1993) 5 NWLR (Pt. 292) 129; Abubakar v. Joseph (2008) 13 NWLR (Pt. 1104) 307; Abubakar v. Chuks (2007) 18 NWLR (Pt. 1066) 389; Phillips v. E.D.C. & Ind. Co. Ltd. (2013) 1 NWLR (Pt. 1336) 618; Nwaogu v. Atuma (2013) 11 NWLR (Pt. 1364) 117. PER OBANDE FESTUS OGBUINYA, J.C.A.

FAILURE OF A NON-PROPONENT OF A COMPUTER GENERATED EVIDENCE TO FILE A CERTIFICATE OF COMPUTER GENERATED EVIDENCE WILL NOT BIRTH INADMISSIBILTY OF SUCH EVIDENCE

Besides, this aspect, non-owner of a computer-generated document, to my mind, is not contemplated by the provision of Section 84 of the Evidence Act, 2011. Nor did the contending parties furnish the Court with any authority on the situation. 
By happenstance, a party may wish to rely on or be a proponent of a document which germinates from a computer that is outside his control. In that wise, it is obvious that he will lack the capacity and capability to attest to the continuous proper operation, in the ordinary course of business/activity, of the mother computer/device or provide an endorsed certificate showcasing the manner of production of the document he proposes to furnish to the Court. To compel him to do either evinces a natural and evidential impossibility. That will, no doubt, make mincemeat of the legal maxim that the law does not command the impossibility – Lex non mogit ad impossibiia. Such compulsion will eclipse the very ends of justice – the attainment of which is the primary duty of the Court. It is deducible from the record, the bible of the appeal, that the trilogy of the appellant, the second and third respondents were involved in the generation of the exhibit L2 in question. Put differently, the first respondent was not particeps in the chain of production that midwifed the CSR – exhibit L2. Indeed, evidence on this galore. Neither the first respondent nor its computer was involved in its production. Therefore, the first respondent, was/is not in control of the computer, which gave birth to it, to equip it with the knowledge that will enable it authenticate its continuous workability. Nor can it properly issue a certificate disclosing the process of its production. To laden this burden on it will be tantamount to foreclosing or shutting the document out of the temple of justice. It, certainly, cannot be the intention of the legislature that Section 84 of the Evidence Act, 2011 should strip a party, who is not the owner/maker of computer-generated-document, of his right to present electronic evidence, meant for the prosecution or defence of his case in a Court of law. PER OBANDE FESTUS OGBUINYA, J.C.A. 

ELEMENTS OF THE TORT OF INJURIOUS FALSEHOOD

The action is specifically anchored on injurious/malicious falsehood which signifies. “A false and injurious statement that discredits or detracts from the reputation of another’s character, property, product or business” It denotes “The common-law tort of belittling someone’s business, goods or services with remarks that are false or misleading: but not necessarily defamatory” see – Bryan A- Garner et al (eds.) Black’s Law Dictionary, 10th edition (West Publishing Co., US.A., 2014) pages 570 and 1721 respectfully. It bears the other names: – trade libel, slander of goods/title. It is an economic tort that attacks proprietary interest of citizens. In Newbreed Org. Ltd. v. Erhomosele (2006) 5 NWLR (Pt. 974) 499, the locus classicus on injurious falsehood, the Apex Court confirmed the essential elements of this tort, videlicet: (a) That the words complained of were untrue (b) That they were published maliciously (c) That the plaintiff has thereby been caused damage. The lower Court’s finding was that the three ingredients of the cause of action were established by the first respondent. PER OBANDE FESTUS OGBUINYA, J.C.A.

DEFINITION OF GENERAL DAMAGES

General damages are damages that the law presumes as flowing from the wrong complained of by the victim. They need not be specifically pleaded and proved; see U.B.N. Plc v. Ajabule (supra); Neka B.B.B. Mfg. Co. Ltd. v. A.C.B. Ltd. (supra); Ajigbotosho v. R.C.C. Ltd. (subra); UBN Plc v. Nwankwo (supra); Ibrahim v. Obaje (supra); Onyiorah v. Onyiorah (supra). It is at the discretion of the Court to award general damages, see Cameroon Airlines v. Otutuizu (supra); Ahmed v. CBN (supra); Unity Bank Plc v. Ahmed (2020) 1 NWLR (Pt. 1705) 364. PER OBANDE FESTUS OGBUINYA, J.C.A.

 

OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal interrogates into the correctness of the decision of High Court of Lagos State, holden at Ikeja, (hereinafter addressed as “the lower Court”), coram judice: S.B.A. Candide-Johnson, J., in Suit No. LD/377/2013, delivered on 31st July, 2017. Before the lower Court, the appellant and the second respondent were the defendants whilst the first respondent and the third respondent were the claimant and the third party respectively.

​The facts of the case, which transformed into the appeal, are amenable to brevity and simplicity. The first respondent, a capital market financial institution, had a banker-customer relationship with the third respondent, a banking institution. On or about 2nd April, 2013, the first respondent applied to the third respondent for a term loan of N250 Million to enable to it purchase a prime property at Lekki Phase I, Lagos. The third respondent, in strict compliance with the Central Bank of Nigeria directive, conducted credit status checks, with the relevant bureaus, on the credit worthiness of the first respondent. On 23rd April, 2013, the third respondent wrote to the first respondent informing it of its inability to grant the term loan due to the unfavourable credit report made against it by the second respondent, a credit information bureau, which was electronically published in its data bank to the whole world including the third respondent. The third respondent further informed the first respondent that the appellant had reported to the second respondent, on 31st October, 2012, that the first respondent had unsecured overdraft facility that was classified as “lost’ as at 31st October, 2012. The first respondent viewed the Credit Status Report (CSC) as false and malicious. It alleged that it constituted malicious falsehood that tarnished its reputation, injured its business and caused it pecuniary losses. Sequel to these, the first respondent beseeched the lower Court, via a writ of summons filed on 16th May, 2013, and tabled against the appellant and the second respondent, jointly and severally, the following reliefs:
1. The sum of N50 Billion as general damages.
2. An order directing the 2nd Defendant to immediately delete from its electronically published data bank and all other publications, all references to the alleged indebtedness of Claimant to the 1st Defendant.
3. An order directing the Defendants to publish retraction and/or apology to the Claimant on the cover pages of the Sunday and Monday editions of The Punch Newspaper, This Day Newspaper and The Guardian Newspaper in respect of the alleged indebtedness of the Claimant to the 1st Defendant.
4. An order of perpetual injunction restraining the Defendants from further publishing any other material or details relating to the alleged indebtedness of the Claimant to the 1st Defendant.
5. Interest on the judgment sum at the rate of 10% per annum from the date of judgment by this Honourable Court until date of final payment by the Defendants.
6. N50 Million as costs of this action.

Subsequently, the second respondent commenced third party proceedings against the third respondent on the ground that there was non-disclosure agreement between them in respect of the CSR of the first respondent.

​In reaction, the appellant, second and third respondents joined issue with the first respondent and denied liability by filing their defences. Following the discordant/rival claims, the lower Court had a full-scale determination of the case. In proof of the case, the first respondent fielded two witnesses; CW1 and CW2 (subpoenaed). In disproof of the case, the appellant, second and third respondents called one witness each — DW1 , DW2 and DW3 respectively. A galaxy of documentary evidence were tendered by the parties. At the closure of evidence, the parties, through their counsel, addressed the lower Court in the manner required by law, id est, adoption of written addresses. In a considered judgment, delivered on 31st July, 2017, found at pages 2341 — 2439, Volume IV, of the record, the lower Court granted the first respondent’s claim and dismissed the third party notice.

The appellant was dissatisfied with the decision. Hence, on 1st August, 2017, the appellant lodged a 6-ground notice of appeal which is copied at pages 2457 — 2461, volume V of the record. Again, on 31st October, 2017, the appellant filed another notice of appeal hosting seventeen grounds which is reflected at pages 1 – 16 of the supplementary record. Later on, the appellant, with the leave of this Court, filed a further amended notice of appeal on 15th September, 2020, which was deemed properly filed on 23rd March, 2021 containing eighteen grounds, wherein it prayed this Court for:
AN ORDER allowing the Appeal and setting aside the Judgment of the High Court of Lagos State delivered in Suit No. LD/377/2013 by Hon. Justice S.B.A. Candide-Johnson on 31.07.17 and dismissing the 1st Respondent’s suit against the Appellant in its entirety.

Thereafter, the parties, through their counsel, filed and exchanged their respective briefs of argument in line with the procedure governing the hearing of civil appeals in this Court. The appeal was heard on 25th June, 2021.

​During its hearing, learned counsel for the appellant, O. Opasanya, SAN adopted the further amended appellant’s brief of argument, filed on 15th September, 2020 but deemed properly filed on 23rd March 2021, and the appellant’s reply brief of argument, filed on 24th June, 2021 but deemed properly filed on 25th June, 2021, as representing his arguments for the appeal. He urged the Court to allow it. Similarly, learned counsel for the first respondent, Chief F. O. Fagbohungbe, SAN, adopted the first respondent’s amended brief of argument, filed on 15th March, 2021 but deemed properly filed on 23rd March, 2021, as forming his reactions against the appeal. He urged the Court to dismiss it. Learned counsel for the second respondent, Yusuf Ali, SAN, informed the Court that the second respondent filed no brief of argument. Also, learned counsel for the third respondent, Adesoji Ojerinde, Esq., notified the Court that the third respondent filed no brief.

First respondent’s application.
By a motion on notice, dated and filed on 23rd June, 2021, the first respondent prayed this Court as follows.
1. An order of this Honourable Court striking out grounds 2, 3, 7, 17 and 18 of the Appellant’s grounds of appeal, as contained in the Further Amended Notice of Appeal filed on 15/9/2020 but deemed by this Honourable Court as filed on 23/3/2021.
2. Such further order or orders as this Honourable Court may deem fit to make in the circumstance.
FURTHER TAKE NOTICE that the grounds upon which the present application is predicated are as follows:
i. Grounds 2, 3, 7, 17 and 18 of the Appellant’s grounds of appeal raise fresh issues, which were not raised by the Appellant at the Court below.
ii. Grounds 2, 3, 7, 17 and 18 of the Appellant’s grounds of appeal are incompetent and liable to be struck out.

The application was supported by a 9-paragraph affidavit sworn to by one Ore-Ofe Akidele – the company secretary of the first respondent.

In opposition, the appellant filed a 10-paragraph counter-affidavit, on 24th June, 2021, which was deposed to by Uyi Uhunmwangho – the legal officer of the appellant.

Resolution of the application.
A cursory look at the first respondent’s application discloses its mission against the appeal. It seeks to indict the competence of grounds 2, 3, 7, 17 and 18 of the appellant’s notice of appeal. It is a notorious and ancient principle of law that a motion, be it on notice or ex parte, is not self-executory. It has to be argued by its proponent/owner for a Court to be properly equipped with the requisite jurisdiction to rule, one way or the other, on it. Curiously, however, the first respondent, in its infinite wisdom, did not argue the application in its amended brief of argument. In glaring absence of not being argued, the application suffers from barrenness and de jure, abandoned. In that unenviable and pitiable state of abandonment, its fortune is obvious. It carries the liability of being struck out. Consequently, in due obeisance to the dictate of the law, I strike out the application on account of abandonment.

First respondent’s preliminary objection.
At the threshold of the first respondent’s amended brief of argument, the first respondent confronted the appeal with a preliminary objection.

Submissions of the objection.
Learned senior counsel for the first respondent, Chief F. O. Fagbohungbe SAN, submitted that the appeal was not commenced by due process because the appellant’s further amended notice of appeal was predicated on an incompetent notice of appeal filed at the lower Court on 31st October, 2017, after the appeal had been entered in this Court on 11th September, 2017. He explained that as at 31st October, 2017, the lower Court had lost jurisdiction to accept the notice of appeal for filing without an order from this Court. He added that many of the grounds in the further amended notice of appeal raise fresh issue making those grounds and issues formulated therefrom incompetent. He enumerated the fresh issues: the first respondent was bound to comply with grievance resolution in exhibit N, exhibit D and L2 were unrelated, exhibit L2 was wrongly admitted, the CW1’s written/witness statement on oath (WSO) was incompetent and the lower Court was bound by the decision in GTB Plc v. Abiodun (2017) LPELR -42551 (CA). He noted that the appellant could not make inconsistent cases. He relied on Abeke v. Odunsi (2013) LPELR-20640 (SC). He contended that those issues flew from the judgment. He however, claimed that they were raised by the second respondent, not the appellant so that it was not the party aggrieved. He cited Mobil Prod. (Nig.) Unitd v. Monokpo (2003) 18 NWLR (Pt. 852) 346; Elelu-Habeeb v. A.-G., Fed. (2012) LPELR – 15515 (SC). He reasoned that the issues in grounds 17 and 18 were issues of substantive jurisdiction, not procedural jurisdiction that could be waived. He referred to Kossen (Nig.) v. Savannah Bank Nig. Ltd. (1995) 9 NWLR (Pt. 420)439; Ariori v. Elemo (1983) 1 SC 13. He urged the Court to dismiss the appeal or strike out grounds 2, 3, 7, 17 and 18 and issues 2, 3, 7 and 11.
On behalf of the appellant, O. Opasanya, SAN, contended that the notice of appeal, filed 31st October 2017, was filed within time and had the attributes of notice of appeal as provided in Section 24(2) (2) (a) of the Court of Appeal Act and Order 7 Rule of the Court of Appeal Rules, 2016. He observed that transmission of record would not suspend the operation of Order 7 Rule 2(1) supra. He relied on Bayero v. Mainasara & Sons Ltd. (2006) 8 NWLR (Pt. 982) 391; Dada v. Sikuade (2014) 17 NWLR (Pt. 1435) 72; UBA Plc v. Contract Resources (Nig.) Ltd. (2018) LPELR – 46302 (CA). He asserted that the alleged fresh issues were jurisdictional issues and those that arose from pleadings and evidence and were competent. He referred to Hamzat v. Sanni (2015) 5 NWLR (Pt. 1453) 486. He stated that it was immaterial that the issues were raised by the second respondent. He cited Elugbe v. Omokhafe (2004) 18 NWLR (Pt. 905) 319; A.-G., Kwara State v. Lawal (2018) 3 NWLR (Pt. 1606) 266. He explained that the appellant drew the lower Court’s attention to the case of GTB Plc v. Abiodun (supra). He concluded that grounds 2, 3, 7, 17 and 18 and issues 2, 3, 7 and 11 were competent before the Court.

Resolution of the preliminary objection
A preliminary objection is a specie of objection which, if sustained by a Court, will render further proceedings in a matter unnecessary, see Abe v. Unillorin (2013) 16 NWLR (Pt. 1379) 183; APC v. INEC (2015) 8 NWLR (Pt. 1462) 531; Jim-Jaja v. C.P, Rivers State (2013) 6 NWLR (Pt. 1350) 225. For this reason, the law commands the Court to deal first with a preliminary objection when raised in any proceedings, see Uwazurike v. A.G., Fed. (2007) 8 NWLR (Pt. 1035) 1; B.A.S.F. (Nig.) Ltd v. Faith Enterprises Ltd. (2010) 4 NWLR (Pt. 1183) 104; SPDCN Ltd v. Amadi (2011)14 NWLR (Pt. 1266) 157; FBN Plc v. T.S.A. Ind. Ltd (2010) 15 NWLR (Pt. 1216) 247; Okereke v. James (2012) 16 NWLR (Pt. 1326) 339; APC v. INEC (Supra); Ogboru v. Uduaghan (2013) 1 NWLR (Pt. 1311) 357; Efet v. INEC (2011) 7 NWLR (Pt. 1247) 423; Sa’eed v. Yakowa (2013) 7 NWLR (Pt. 1352) 133; Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 113; SPDCN Ltd. v. Agbara (2016) 2 NWLR (Pt. 1496) 353; Agbaje v. INEC (2016) 4 NWLR (Pt. 1501) 151; Allanah v. Kpolokwu (2016) 6 NWLR (Pt. 1057) 1; Umanah (Jnr.) v. NDIC (2016) 14 NWLR (Pt. 1533) 458; Esuwoye v. Bosere ​ (2017) 1 NWLR (Pt. 1546) 256; Achonu v. Okuwobi (2017) 14 NWLR (Pt. 1584) 142. I will obey this legal commandment so as not to insult the law. The first respondent (objector) seeks to terminate the appeal in limine.

A clinical examination of the submissions on the preliminary objection, which is bereft of reasons and grounds, reveals that it is staked on two grounds videlicet: that the original notice of appeal is incompetent because it was filed after the appeal had been entered in this Court and that grounds 2, 3, 7, 17 and 18 and the accompanying issues 2, 3, 7 and 11 are incompetent. In the spirit of orderliness, I will attend to the duo grounds seriatim.

​On the first ground, the marrow of the objector’s chief grievance, indeed its trump card on the objection, is that the original notice of appeal, upon which the further amended notice of appeal is predicated, was filed after the appeal had been entered in this Court. It is discernible from the record, the bedrock of the appeal, that the lower Court delivered its decision, which is sought to be impugned, on 31st July, 2017. By virtue of the prescription of Section 24(2) of the Court of Appeal Act, Cap. C.36, Laws of the Federation (LFN), 2004, the appellant had 90 days to lodge an appeal against the final decision. The appellant’s original notice of appeal, which is the substratum of the further amended notice of appeal, filed on 15th September, 2020 and deemed properly filed on 23rd March, 2021 respectively, was filed on 31st October, 2017. Indisputably, Nigeria is a user/operator of the Gregorian calendar of general application. From the calendar computation, between 31st July, 2017, when the appellant’s right of appeal ripened/matured, and 31st October, 2017, the birth day of the notice of appeal, is a period of 90 days. In other words, the mother notice of appeal was filed within the time frame decreed by the sacrosanct provision of Section 24(2) of the Court of Appeal Act. The fact that the filing of the original notice of appeal was posterior to the entry of the appeal does not, in the least, smear/taint it with any incompetence as to disrobe this Court of the requisite jurisdiction to entertain the appeal. It will not meet the ends of justice, man’s greatest interest in the universe, to shut the open door of the temple of justice against the aggrieved appellant on the unfounded justification that the original notice of appeal was filed during the pendency of the appeal in this Court. On the premises of the foregoing, this ground of attack against the appeal is lame. It cannot fly!

That takes me to the settlement of ground two of the objection. The kernel of it is plain. It quarrels with grounds 2, 3, 7 and 11 of the appellant’s further amended notice of appeal which warehouses nineteen grounds. It is now trite law that a motion on notice is filed where a party intends to challenge the incompetence of one or two grounds of appeal in the presence of an existing valid ground(s), see Garba v. Mohammed (2016) NWLR (Pt. 1537) 114; Kente v. Ishaku (2017) 15 NWLR (Pt. 1587) 96; PDP v. Sheriff (2017) 15 NWLR (Pt. 1588) 219; NNPC v. Famfa Oil Ltd. (2012) LPELR 7812(SC), (2012) 17 NWLR (Pt. 1328) 148; Cocacola (Nig.) Ltd. v. Akinsanya (2017) 17 NWLR (Pt. 1593) 74; Ezenwaji v. UNN (2017) 18 NWLR (Pt. 1598) 45; Petgas Resources Ltd. v. Mbanefo (2018) 1 NWLR (Pt. 1601) 442; KLM Royal Dutch Airlines v. Aloma (2018) 1 NWLR (Pt. 1601) 473; Isah v. INEC (2016) 18 NWLR (Pt. 1544) 175; Lawanson v. Okonkwo (2019) 3 NWLR (Pt. 1658) 77. UBN PLC V. Ravih Abdul & Co. Ltd. (2019) 3 NWLR (Pt 1659) 203; FRN v. Atuche (2019) 8 NWLR (Pt. 1674) 338; Lolapo v. COP (2019) 16 NWLR (1699) 476. Opeyemi v. State (2019) 17 NWLR (Pt. 1702) 403.
I have married the meat of the objection with the inelastic position of the law displayed above. The wisdom behind the comparison is not far-fetched. It is to ascertain if the objection is obedient to the law or desecrates it. An in-depth study of the objector’s objection, discernible from its arguments thereon, clearly, reveals that it mainly chastises the appellant’s grounds 2, 3, 7 and 11 of the notice of appeal. It is obvious that the objector’s objection spared grounds 1, 4, 5, 6, 8, 9, 10, 12 – 19 of the notice of appeal. In other words, those grounds 1, 4, 5, 6, 8, 9, 10, 12 – 19 are viable and valid with the potency to sustain the appeal. In the face of the existential validity of grounds 1, 4, 5, 6, 8, 9, 10, 12 – 19, the objector ought not to have filed a preliminary objection. The proper/appropriate process is an application (motion on notice) challenging the viability of those grounds. In so far as the target of the objection is against grounds 2, 3, 7 and 11, it is impotent to determine the destiny of the entire appeal. In this wise, the objector’s approach is, highly, offensive to the law as it ought to have besieged this Court by way of an application. The improper mode constitutes a serious coup de grace to the competency of the objection. Since the ground is infested with an indelible incompetence, its fortune is obvious. It carries the liability of being struck out. Consequently, in due fidelity to the dictate of the law, I strike out the ground two of the preliminary objection for being incompetent.
Overall, since the live ground one failed woefully, the preliminary objection, which the first respondent invented to snuff life out of the appeal, in its embryo, flies in the face of the law. It is bereft of any grain of merit. Consequently, I dismiss the preliminary objection. I proceed to determine the appeal on its merit.
Consideration of the appeal.
In the further amended appellant’s brief of argument, learned senior counsel distilled eleven issues for determination to wit.
1. Whether the lower Court was right in holding that the 1st Respondent’s action as constituted in the Writ of Summons and Statement of Claim is for injurious falsehood (especially having regard to the Court’s ruling of 18.09.14 that the 1st Respondent’s case was predicated on injurious falsehood and/or defamation).
2. Whether the lower Court was right in allowing the 1st Respondent to leapfrog and violate the legal prescription of the provisions of Exhibit N which spell out mandatory regulatory grievance resolution mechanism prior to Court action.
3. Whether the lower Court was right in failing to expunge Exhibit L2 from its record on the basis that it was functus officio on the issue of admissibility of Exhibit L2 when in fact it was admitted in contravention of Section 84 of the Evidence Act.
4. Whether the lower Court was right in holding that Exhibit L2 was published to the whole world by the Appellant notwithstanding that access to the secure data base from which the 3rd Respondent printed Exhibit L2 was granted by the 2nd Respondent on the instruction of the 1st Respondent coupled with the incontrovertible evidence that the 3rd Respondent thereafter released it directly and specifically to the 1st Respondent only vide Exhibit L.
5. Whether the lower Court was right in holding that the 1st Respondent proved a case of injurious falsehood against the Appellant having regard to lack of evidential proof of the essential elements of the tort of injurious falsehood.
6. Whether the lower Court was right in holding that the defences of justification and qualified privilege do not avail the Appellant.
7. Whether the lower Court was not in error when it held that Exhibit L2 (the credit status report), was connected to Exhibit D (the 1st Respondent’s loan application), and on that basis affirmed the 1st Respondent’s case when in fact Exhibit L2 predated Exhibit D.
8. Whether the lower Court was right in holding that this case and the case embodied in Exhibit G were unrelated although both cases related to the same bank account and credit facilities.
9. Whether, by deciding to discountenance the Final Written Address of the Appellant, and embellishing the case of the 1st Respondent, the lower Court denied the Appellant fair hearing.
10. Whether having regards to the state of pleadings and the evidence before the lower Court, the award of N50,000,000,000.00 (Fifty Billion Naira) general damages and N500,000.00 (Five Hundred Thousand Naira) cost is justified.
11. Whether the lower Court ought not to have struck out the Written Statement on Oath of CW1 dated 16.05.13 on the ground of its non-compliance with the mandatory requirement of the Oaths Law of Lagos State.

In the first respondent’s amended brief of argument, learned senior counsel crafted twelve issues for determination, namely:
1. Whether the Court below was right in its conclusion that the 1st Respondent’s cause of action was misconceived by the Appellant before finding the Appellant liable for the tort of injurious falsehood?
2. Whether the Court below was right in holding that the 1st Respondent’s constitutional right to institute its action cannot be restricted or circumscribed by the provisions of exhibit N (The Guidelines for the Licensing, Operations And Regulations of Credit Bureaus in Nigeria)?
3. Whether the Court below was right in holding that exhibits L2 and D were related and contemporaneous and that the 1st Respondent suffered very substantial pecuniary and business losses due to the publication of exhibit L2?
4. Whether the Appellant was actually denied its constitutional right to fair hearing, merely because the Court below stated that the Appellant’s final written address will be discountenanced for the reason that same was based on the tort of libel and not injurious falsehood, which was the 1st Respondent’s cause of action?
5. Whether the Court below contradicted itself by stating that the 1st Respondent’s cause of action was founded squarely on the tort of injurious falsehood and not on the tort of libel?
6. Whether the Court below was right in holding that given the peculiar facts and circumstances of the case, exhibit L2 was admissible and that same was published by the Appellant to the whole world?
7. Whether the Court below was right in its conclusion that the 1st Respondent established that exhibit L2 was a malicious and false publication?
8. Whether the Court below was right in holding that given the 1st Respondent’s cause of action, the suit before the Court was distinct and separate from the suit which culminated in the Appellant’s appeal at the Supreme Court of Nigeria?
9. Given the peculiar facts and circumstances of the case before the Court below, whether the learned trial Judge was right in relying on the judgment in exhibit G in coming to the conclusion that the Appellant acted with malice and ill will in publishing exhibit L2?
10. Whether the Court below was right in holding that the evidence of CW1 was credible, cogent and believable and that the defence of justification and qualified privilege cannot avail the Appellant?
11. Given the peculiar facts and circumstances of the case before the Court below, whether the Court below was right in entering judgment in favour of the 1st Respondent and awarding the sum of N50 Billion claimed by the 1st Respondent as general damages and an additional sum of N500,000 as costs?
12. Whether the Court below was right in holding that the witness’ written statement on oath on CW1 dated 16/5/2013 was competent, notwithstanding the decision in the case of GTB Plc. v. Abiodun (2017) LPELR -42551 (CA)?

A close look at the two sets of issues shows that they are identical in substance. In fact, the first respondent’s issues can be conveniently, subsumed under the appellant’s. For this reason of sameness, I will decide the appeal on the issues nominated by the appellant: the undisputed owner of the appeal.

Arguments on the issues.
Issue one.
Learned Senior counsel for the appellant submitted that the lower Court was wrong when it departed from its interlocutory decision on the nature of the first respondent’s case that the first respondent’s action was injurious falsehood and not injurious falsehood and/or defamation. He relied on Bounwe v. REC Delta State (2006) 1 NWLR (Pt. 961) 286. He described the act as approbating and reprobating. He cited Saror v. Suswam (2012) LPELR-8611. He stated the difference between tort of injurious falsehood and tort of defamation. He referred to Harry Street’s, ‘Law of Torts’, 12th edition, page 359; Ratcliffe v. Evans (1892) 2 Q.B. 52; Joyce v. Sengupta (1993) 1 WLR 337. He noted that by cherry-picking injurious falsehood, the lower Court did not look at the facts pleaded in the first respondent’s writ of summons and statement of claim as a whole as required by law. He relied on Ogoke v. Ogoke (2012) LPELR-19681; Ogunseye v. Registered Trustees of World Mission Agency Incorporated ​(2017) LPELR – 42767. He said that in a claim of injurious falsehood, it must be shown that the defendant’s representations relate to the plaintiff’s goods. He referred to White v. Mellin (1895) AC 154 at 167. He maintained, based on the pleading, that the first respondent’s cause of action was in defamation not injurious falsehood. He concluded that the reliefs granted had no bearing with the cause of action. He cited Salubi v. Nwariaku (2003) LPELR – 2998 (SC).

For the first respondent, learned senior counsel contended that the reference to the interlocutory ruling of 18th September, 2014 was irrelevant in determining the appeal. He asserted that injurious falsehood is a specie of defamation under the Defamation Law of Lagos State, Cap. D2, 2003 (Defamation Law) and the same made the distinction irrelevant. He relied on Nigerian Tobacco Co. Ltd. v. Agunanne (1995) LPELR-2034 (SC). He enumerated the elements of injurious/malicious falsehood as noted in Newbreed Organisation Ltd. v. Erhomosele (2006) 4 SCM 87. He observed that a cause of action would be determined by the statement of claim alone, not the statement of defence. He referred to A.-G., Kwara State v. Olawale (1993) 1 SCNJ 208. He persisted that the statement of claim showed the elements of injurious falsehood. He opined that the appellant suffered no miscarriage of justice by the lower Court’s choice of injurious falsehood against defamation. He added that a company, like the first respondent, could be defamed like a human being. He cited Chilkied Security & Dog Farms Ltd. v. Schlumberger Nig. Ltd. (2018) LPELR – 44391 (SC); Edem v. Orpheo Nig. Ltd (2003) 13 NWLR (Pt. 838) 537. He said that the first respondent was not required to prove special damage under Section 5 (1) of the Defamation Law. He concluded that the first respondent showed, based on its pleading and evidence that the injurious falsehood affected its business and the lower Court rightly so found.

On points of law, learned senior counsel for the appellant posited that the lower Court’s departure from the interlocutory ruling without address from the parties occasioned a miscarriage of justice to the appellant. He added that the distinction drawn between defamation and libel contradicts the decision in Guardian Newspaper Ltd. V. Ajeh (2011) 10 NWLR (Pt. 1256) 574. He concluded that Section 5 of the Defamation Law does not relieve the first respondent of its obligation, under common law, to establish economic lost. He referred to Ijebu Ode v. Adedeji Balogun & Co. Ltd (1991) 1 NWLR (Pt. 166) 136.

Issue two.
Learned Senior Advocate for the appellant contended that the first respondent failed to approach the Central Bank of Nigeria (CBN) under the dispute resolution mechanism provided in Section 6.8 of the Guideline for the Licensing Operation and Regulation of Credit Bureaus in Nigeria (the Guidelines) issued by the CBN in 2008. He classified the Guidelines, exhibit N, as a subsidiary legislation, made under Sections 33 and 52 of the Central Bank of Nigeria Act, 2007, and has the force of law. He relied onAbubakar v. B.O. & A.P. Ltd. (2007) LPELR -55 (SC); Section 18 (1) of the Interpretation Act. He classified the mechanism as a condition precedent and the first respondent’s failure to comply with it made its action incompetent and the lower Court had no jurisdiction to hear it. He cited Owoseni v. Faloye (2005) 14 NWLR (Pt. 946) 719; Ugwu v. Ararume (2007) 6 SC (Pt. 1) 88; Madukolu v. Nkemdilim (1962) 2 SCNLR 341; Eguamwense v. Amaghizemwen (1993) NWLR (Pt. 31 5) 1.

On behalf of the first respondent, learned Silk argued that the Guideline was not binding on it. He noted that Section 6.8 of the Guidelines is not a condition precedent and it cannot be imputed into it. He relied on Ikemefuna v. Ilondior (2018) LPELR-44840 (CA). He reasoned that the appellant waived the provision when it failed to plead the condition precedent. He cited Katsina Local Authority v. Makudawa (1971) 1 NMLR 100; Mobil Producing Nig. Unltd v. L.AS.E.P.A. (2002) 18 NWLR (Pt. 798) 1; Owoseni v. Faloye (supra); HDP v. Jonathan (2011) LPELR – 9054 (CA). He described the issue as a fresh issue as it did not arise from the appellant’s pleading. He concluded that the appellant cannot set up a case different from that in the lower Court. He referred to Osuji v. Ekeocha (2009) 16 NWLR (Pt. 1166) 81.

On points of law, learned senior counsel posited that the Guidelines were binding on the first respondent and it ought to have complied with Section 6.8 thereof. He referred to Ojogbede v. Ogundipe (2008) All FWLR (Pt. 399) 589. He stated that Guideline encapsulates a public policy principle and cannot be waived.

Issue three.
Learned Silk for the appellant contended exhibit L2 was a computer generated document which did not comply with Section 84(2) and (4) of the Evidence Act, 2011 which made it inadmissible. He relied on Kubor v. Dickson (2013) 4 NWLR (Pt. 1345) 534; Blaise v. FRN (2017) 6 NWLR (Pt. 1560) 90; P.D. Hallmark Contractors Nig. Ltd. v. Gomwalk (2015) LPELR-24462 (CA). He opined that a Court has a duty to expunge wrongly admitted inadmissible evidence. He cited Abubakar v. Chuks (2008) WRN (vol. 20) 27. He took the view that the duty of a Court to act on legally admissible evidence overrides the functus officio rule. He referred to Shanu v. Afribank (Nig.) Plc. (2002) 17 NWLR (Pt. 795) 185.

On the part of the first respondent, learned Senior Advocate of Nigeria submitted that the appellant admitted that it published the information in exhibit L2 and it never applied for it to be expunged in the lower Court and could not do that in the appeal. He cited FRN v. Kayode-Beckley (2020) 16 NWLR (Pt. 1750) 219; Ezenwo v. Festus (No. 1) (2020) 16 NWLR (Pt. 1750) 324. He opined that exhibit L2 is admissible under certain conditions and it was used by the appellant so that it cannot complain on its admissibility. He relied on Orlu v. Onyeka (2018) 3 NWLR (Pt. 1607) 467; Kassim v. State (2017) LPELR-42586 (SC). He asserted that exhibit L2 was tendered as an annexure to exhibit L as one document and so admissible. He claimed that the first respondent did not plead that it generated or printed exhibit L2 and had no onus to produce a certificate. He declared the case of Shanu v. Afribank (Nig) Plc (Supra) as inapplicable as exhibit L2 is not inherently inadmissible.

On points of law, learned senior counsel for the appellant posited that counsel’s failure to object to inadmissible evidence would not prevent his application to have it expunged. He relied on Alao v. Akano (2005) 4 SC 25. He added that the mere fact that exhibit L2 was used for cross-examination did not change its character. He cited Rosehill Ltd v. GTB (2016) LPELR-417665 (CA); Emmanuel v. FRN (2018) LPELR-45235 (CA). He explained that the fact that exhibit L2 was tendered as part of a one document was not an excuse under Section 84 of the Evidence Act, 2011. He referred to Williams v. Daily Times of Nigeria Ltd. (1990) 1 NWLR (Pt. 124) 1. He concluded that the first respondent’s submission that it was not the maker of exhibit L2 made it a documentary hearsay.

Issue four.
Learned senior counsel for the appellant submitted that paragraph 7 of the statement of claim, upon which the lower Court held publication, described the second respondent’s business and not publication of the first respondent’s credit information. He reasoned that the paragraph did not concern the appellant and it could not have admitted it. He asserted that to decide admission, the entire pleading must be read. He cited Titiloye v. Olupo (1991) 7 NWLR (Pt. 205) 519. He said that there was no admission in exhibit M. He narrated the ingredients of admission. He referred toA.T.M. Plc. v. B.V.T. Ltd. (2007) 1 NWLR (Pt. 1015) 25. He noted that the appellant did not publish exhibit L. He explained that access to exhibit N is regimented and it was only the third respondent that accessed the second respondent’s data base with the first respondent’s consent. He relied on the evidence on record. He opined that until the electronic information supplied to the data base of the second respondent was read by a human being, there was no publication. He referred to Jackson v. Staley (1885) 9 Ontario R. 334; Gatley on Libel and Slander, 17th Edition, page 228.

On the part of the first respondent, learned Senior Advocate of Nigeria listed the essence of paragraph 7 of the statement of claim. He claimed that the appellant admitted publication of exhibit L2 in paragraph 3 of exhibit M and evidence of DW1’s WSO. He said that the first respondent’s case was on publication of injurious falsehood in exhibit L2, relying on its statement of claim. He stated the meanings of publish, and publication writing as noted in Akiti v. Punch (Nig.) Ltd (2009) 11 NWLR (Pt. 1152) 286, Black’s Law Dictionary, 10th edition, page 1846. He persisted that there was no miscarriage of justice in the holding of the lower Court to lead to reversal of its decision. He cited Amayo v. Erinmwingbovo (2006) All FWLR (Pt. 318) 616. He observed that the appellant did not obtain the consent of the first respondent to publish exhibit L2 as required by Sections 2.4, 2.5 and 2.8 of exhibit N. He added that by Sections 2.5.2.9, 5.2.2, 5.4.5, 5.6, 5.7 (3), 6.4 and 9.4 of exhibit N, the second respondent must review the information in exhibit L2 before circulation but it failed to do so. He explained that the lower Court properly exercised its discretion in refusing part of the appellant’s application for amendment in a ruling of 18th September, 2014.

Issues five and six.
Learned Senior Advocate for the appellant listed the elements of injurious falsehood as noted in Newbreed Org. Ltd. v. Erhomosele (supra). He submitted that those elements were not proved by the first respondent. He opined that the lower Court wrongly held exhibit L2 false on the basis of exhibit G when there was an appeal against it. He stated that the lower Court did not consider that exhibit G was on appeal to the Supreme Court hence it refused its application to bring the notice of appeal. He explained that, based on the appeal, the appellant was entitled to retain the indebtedness of the first respondent in its books. He asserted that its finding on lack of annotation of exhibits G and H in exhibit L2 did not consider the evidence of DW1 on lack of column for judgment. He viewed the evidence of DW1 as unchallenged and the lower Court should have acted on it. He cited Nzeribe v. Dave Engineering Co. Ltd (1994) 8 NWLR (Pt. 351) 124. He said that malice was not proved. He referred to Haisey v. Brotherhood (1881) 10 Ch. 386 at 388 as to what amounts to malice. He observed that to establish malice, there must be intention to injure. He cited British Railway Traffic Co. v. C.R.C. Co. (1922) K.B. 260 at 269; Brogden v. Metropolitan R/y Co. (1893) 1QB 225. He claimed no ill motive would be deduced from exhibit L2. He reasoned that the lower Court wrongly relied on exhibit G, mathematical inaccuracies in accounts in exhibit L2, cross-examination of DW1, dormant account, ceasing to do business and history of conflict as evidence of malice. He stated that exhibit L was obtained in compliance with exhibit N and so no evidence of malice. He referred to Amsel Ltd v. UBN Plc (2017) LPELR-42980 (CA). He reasoned that the first respondent was to show actual or express malice. He postulated that actual damage was not proved as required by law. He referred to Ratchiffe v. Evans (supra); Newbreed Organization Ltd v. Erhomosele (supra). He asserted that there was no evidence of loss of profit, loss of business opportunities, loss of credit worthiness and document to purchase property at Lekki as exhibits B and C were not enough. He noted that the lower Court relied on speculations and conjectures.

Learned silk further submitted that the fact that exhibit L2 was made as a duty under exhibit N and that there was an appeal against exhibit G showed justification – a complete defence to defamation or injurious falsehood. He relied on Z.P Ind. Ltd. V. Samotech Ltd. (2007) 16 NWLR (Pt. 1060) 315; Mamman v. Salaudeen (2005) 18 NWLR (Pt. 958) 478; Michelin Tyre Services Ltd v. Akinwunmi (2009) 16 NWLR (Pt. 1168) 633; Amsel Ltd V. UBN Plc. (2017) LPELR – 42980.

For the first respondent, learned Silk argued that exhibit L2 was false based on its contents and- exhibits 1, 2A, 3A, 4 and G. He analyzed its contents. He said the appeal against exhibits G and H was dismissed in Stanbic IBTC Bank Plc v. L.T.G.C Ltd (2019) 3 NWLR (Pt. 1659) 374. He said that the evidence of DW1 was not unchallenged. He described exhibit E-E1 , F, I and G as evidence of lack of indebtedness. He cited Section 173 of the Evidence Act, 2011, Ikpeazu v. Otti (2016) 8 NWLR (Pt. 1513) 38. He said oral evidence showed that exhibit L2 was false. He stated that by Sections 5.3.4, 5.4.5. and 5.5(c) of exhibit N, the second respondent had a duty to verify information received. He conceded that intention is subjective and a Court would look at surrounding circumstances to get malice. He citedM.T.S Ltd v. Akinwunmi (supra); Onyejike v. Anyaso (1992) 1 NWLR (Pt. 218) 437; Newbreed Organization Ltd v. Erhomosele (supra). He insisted that malice was proved. He said that appellant had a duty to obey exhibit G. He declared the case of Amsel Ltd v. UBN Plc (supra) as inapplicable. He listed instances to show that the appellant had the intention to asphyxiate the business of the first respondent based on exhibit L2. He relied on Sections 2.5, 2.9, 2.10, 2.15, 5.1, 5.4, 5.3.4, 5.4.5 (c), 5.6 (1) and 5.7 (3) of exhibit N. He concluded that evaluation of evidence is the duty of the lower Court. He cited Asariyu vs State (1987) 4 NWLR (Pt. 67) 709.

Issue seven
Learned Senior Advocate for the appellant contended that there was no connection between exhibit D, dated 2nd April, 2013, and exhibit L2, dated 4th December, 2012, upon which the action was based, because of no logical sequence in their dates. He reasoned that exhibit D should have predated exhibit L2 and their latter could not have been the reason for the former. He claimed that evidence of DW3 which the lower Court held as admission on the point was an opinion which was inadmissible under Section 67 of the Evidence Act, 2011. He opined that the evidence was not based on any pleading and so went to no issue. He added that oral document would not alter documentary evidence. He said the lower Court amended exhibit L2 to read 2nd April, 2013. He noted that exhibit L1, dated 10th April, 2013, showed it came after the exhibit D. He maintained that exhibit L2 had no nexus with exhibit D.

​On behalf of the first respondent, learned Silk argued that by Section 5.6(2) and (3) of exhibit N, the second respondent was to update information in CSR ongoing basis. He explained that the CSR was to cover facility for the last 36 months from January, 2010 December, 2012 so that exhibit L2 came within the period. He highlighted the evidence of DW3 (third respondent’s sole witness) and described it as credible. He noted that the issue is a fresh one as it was not pleaded by the appellant and its evidence thereon went to no issue. He cited Adeosun v. Governor of Ekiti State (2012) LPELR -7843 (SC). He persisted that evidence of DW3 was not contrary to Section 67 of the Evidence Act, 2011. He concluded that it did not matter whether exhibit L2 was made on 4th December, 2012 or April, 2013 as what mattered was that the first respondent’s credit information published by the appellant on 31st October, 2012 was injurious falsehood against it.

Issue eight.
Learned Senior Counsel for the appellant posited that the lower Court used exhibit G as the basis for liability of the appellant. He noted that, in another breath, it described the exhibit G and the case as unrelated with different legal journeys. He described the act as approbating and reprobating. He cited Saror v. Suswam (supra). He reasoned that given the inextricable link between the two, the lower Court should have adjourned the case pending the appeal in the Supreme Court. He claimed that the decision was perverse and should be struck out. He referred to Abi v. CBN (2011) LPELR-4192; Odumosu v. Oluwole (2002) LPELR-12307.

​On behalf of the first respondent, learned Senior Advocate submitted that the lower Court rightly held that the case related to past event while the appeal on exhibit G related to future event. He interpreted the finding to mean that the case could be determined without waiting for the future outcome of the appeal before the Supreme Court.

Issue nine
Learned Senior Advocate for the appellant submitted that right of address is rooted in common law, the Constitution, as amended, and Order 33 Rule 18 of the High Court of Lagos (Civil Procedure) Rules, 2012 (the High Court Rules). He asserted that the lower Court’s discountenance of the appellant’s final written address denied it of its right to fair hearing, occasioned a miscarriage of justice, violated some principles of law or procedure and rendered the judgment perverse and a nullity. He relied on Section 36(1) of the Constitution, as amended, Obodo v. Olomu (1987) 3 NWLR (Pt.111) 123; Martins v. COP (2013) 4 NWLR (Pt.1345) 25; N.F. & V.C.B. v. Adegboyega (2012) 10 NWLR (Pt. 1307) 45; Atano v. A.G., Bendel State (1988) 2 NWLR (Pt. 75) 132; Tsokwa Motors Nig. Ltd v. UBA Plc (2008) 2 NLWR (Pt. 1071) 347; Awuse v. Odili (2005) 16 NWLR (Pt. 952) 416. He added that the lower Court wrongly embellished the first respondent’s written address and evidence without hearing from the appellant. He referred to Abenga v. B.S.J.S.C (2006) 14 NWLR (Pt.1000) 611. He enumerated the instances of embellishment. He conceded that the lower Court made use of some parts of the written address.

On the part of the first respondent, learned senior counsel argued that since the decision was arrived at after rendering the appellant’s written address, its complaint of denial of fair hearing was not valid. He relied on Adebayo v. A.G., Ogun State (2008) 7 NWLR (Pt. 1085) 201; Apatira v. Lagos Island L.G. (2006) 17 NWLR (Pt.1007) 46; Maritime Academy of Nigeria v. A.Q.S. (2008) All FWLR (Pt.406) 1872. He reasoned that a Court can discountenance incompetent process. He cited Bode v. Mubi Emirate Council (2016) LPELR – 40800 (CA); Okwejiminor v. Gbakeji (2008) 5 NWLR (Pt.1079) 172. He claimed that no miscarriage of justice was suffered by the appellant as address of counsel is meant to assist the Court and substitute for pleading and evidence. He referred to Ogunsanya v. State (2011) 6-7 SC (Pt. II) 56; Orepekan v. Amadi (1993) 11 SCNJ 68.

On points of law, learned silk for the appellant highlighted the fair hearing as noted inDiga v. Tony (2013) LPELR-20768 (CA); Mfa v. lnongha (2014) LPELR-2210 (SC). He posited that a miscarriage of justice follows denial of fair hearing. He cited Tyonex (Nig.) Ltd v. Pfizer Ltd. (2020) 1 NWLR (Pt.1704) 125; Mpama v. FBN Plc. (2013) 5 NWLR (Pt. 1346) 176.

Issue ten
Learned senior counsel for the appellant contended that the first respondent failed to plead and prove actual or special damages as required by law. He relied on UTB v. Ozoemena (2007) 3 NWLR (Pt. 1022) 448. He observed that the lower Court based its award on speculations and irrelevant documents – exhibits B and C. He referred to Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 113; UBN Plc. v Lawal (2015) 14 NWLR (Pt. 1479) 203. He opined that exhibit K was wrongly dumped on the Court. He cited Awuse v. Odili (2005) 16 NWLR (Pt. 952) 416; Terab v. Lawan (1992) 3 NWLR (Pt. 231) 569; Lumatron (Nig.) Ltd v. FCMB (2016) LPELR-41409. He insisted that the award was not based on evidence. He referred to Egwunewu v. Ejeagwu (2007) 6 NWLR (Pt. 1031) 431. He asserted that the award was wrongly based on anticipated profits. He citedN.B.B.B. Manufacturing Co. Ltd. v. ACB Ltd (2004) 1 SC (Pt. 1 ) 32.

Learned Silk further contended that the award was based on first respondent’s capacity and profile not on actual damage suffered as required by law. He relied onNew breed Organization Ltd v. Erhomosele (supra). He added that the award was wrongly made as exemplary damages against the principles for such damages. He referred to Onagoruwa v. IGP (1991) 5 NWLR (Pt. 193) 593; Ezeani v. Ejidike (1964) 1 All NLR 402. He noted that the first respondent never pleaded nor sought for exemplary damages to deserve it. He cited Ellochin (Nig.) Ltd v. Mbadiwe (1986)1 NWLR (Pt. 14) 47. He reasoned that the lower Court wrongly relied on Carlill v. Carbolic Smokes Ball Co. (1892) EWCA CIV 1 in making the award.

It was posited that the award was excessive. He conceded that award of damages is at the discretion of a Court, but it can be interfered with in certain circumstances. He cited Ahmed v. CBN (2013) 2 NWLR (Pt. 1339) 524. He urged the Court to set aside the award. He referred to NDIC v. Ette (2016) 8 NWLR (Pt. 1514) 345. He described the award of costs of N500,000.00 as excessive and urged the Court to set it aside.

On behalf of the first respondent, learned Silk submitted that award cannot be set aside because it is excessive considering inflation and depreciation of currency. He relied on Benjamin v. Kalio (2018) 15 NWLR (Pt. 1641) 38; DHL Int’l Nig. Ltd v. Ezeuzoamaka (2020) 16 NWLR (Pt. 1751) 445. He noted that civil cases are determined on preponderance of evidence. He referred to Uwah v. Akpabio (2014) LPELR-22311 (SC). He stated that the actual damage contemplated injurious falsehood is not the same as special damages. He noted the difference between general and special damages. He relied on Ismail v. Garba (2020) 16 NWLR (Pt. 1750) 302; Onyiorah v. Onyiorah (2019) 15 NWLR (Pt. 1695) 227. He claimed that exhibit K was not dumped on the Court. He added that exhibits D and L speak to the damage suffered. He described the “exemplary damages” mentioned in the decision as obiter which cannot be made subject of an appeal. He relied on Odunukwe v. Ofomata (2010) 18 NWLR (Pt.1225) 404. He asserted, in the alternative, that even if the award was for exemplary damages it cannot be set aside because it can be made without being pleaded and claimed. He referred to CBN v. Okojie (2015) 14 NWLR (Pt. 1479) 231; Think Ventures Ltd vs Spice & Regler Ltd. (2021) 2 NWLR (Pt. 1759) 114. He stated the case of Carlill v. Carbolic Smoke Ball Co. (supra) was properly applied by the lower Court. He conceded that award of general damages is at the discretion of a Court. He enumerated the factors the lower Court used in making the award. He insisted that they were based on the evidence. He opined that the appellant did not make out a case for setting aside the award. He relied on Union Homes Savings and Loans Plc. Blue Wing Travel and Tours Ltd. (unreported) Appeal CA/L/1189/2015, delivered on 9th June, 2017. He postulated that appellant could not show why the award of cost should be set aside. He stated that costs follow event and its award at the discretion of the Court. He relied on Layinka v. Makinde (2002) 10 NWLR (Pt. 776) 358, Ero V. Tinubu (2012) LPELR- 7869 (CA); Order 49 Rule (1) of the High Court Rules. He persisted that the awards were based on judicial and judicious exercises of discretion.

​On points of law, learned Silk for the appellant posited that issue of damages is deemed to be traversed unless specifically admitted even as general traverse is sufficient. He relied on Osuji v. Isiocha (1989) 3 NWLR (Pt. 111) 632; Dairo v. Registered Trustees T.A.D Lagos (2018) 1 NWLR 1 (Pt. 1599) 62. He insisted that an appellate Court can interfere with excessive damages. He relied on N.C.C. v. Motophone (2019) 14 NWLR (Pt. 1691) 1.

Issue eleven.
Learned Silk for the appellant submitted that the lower Court wrongly failed to strike out CW1’s WSO which has no mandatory statutory declaration contrary to Section 11 of the Oaths Law of Lagos State (Oaths Law) and Section 13 of the Oaths Act. He relied on GTB Plc. v. Abiodun (2017) LPELR-42551. He reasoned that the substantial compliance, invoked by the lower Court, is applicable procedural law not substantive law such as the Oaths Law or Oaths Act. He relied on Majekodunmi v. Ogunseye (2017) LPELR- 42547 (CA). He noted that the time of the objection was irrelevant and the case of Etene v. Nyong (2012) LPELR- 803 (CA), cited by the lower Court was inapplicable. He postulated that WSO was void ab initio and there was nothing to be adopted by CW1 in Court. He cited Macfoy v. UAC (1962) AC 152. He took the view that if the WSO breached the Oaths Law, then the conclusion is that the action breached Order 3(1) of the High Court Rules – a subsidiary legislation under Section 18 (1) of the Interpretation Act. He insisted that rules of Court must be obeyed. He referred to Owners of the MV Arabella v. NAIC (2008) 11 NWLR (Pt. 1098) 182; Solanke v. Somefun (1974) 1 SC 141. He explained that striking out the WSO is justice not technically as opposed to the holding of the lower Court. He asserted that the lower Court was, under stare decisis, bound to follow the latest decision of this Court inGTB Plc v. Abiodun (supra). He cited Nigeria Agip Oil Co. Ltd v. Nkweke (2016) LPELR -26060 (SC); Osakwe v. FCE (Technical) Asaba (2010) 2 – 3 SC (Pt. III) 158; Dalhatu v. Turaki (2003) LPELR – 917 (SC).

For the first respondent, learned Senior Advocate argued that the issue is a fresh one and incompetent as it was raised in the appellant’s address. He noted that a party should be consistent in his case. He relied on Kayode v. Odutola (2001) 11 NWLR (Pt. 725) 659. He added that the non-compliance is an irregularity that could be waived. He referred to Saude v. Abdullahi (1989) LPELR-3017 (SC); Majekodunmi v. Ogunseye (supra); Macleans v. Inlaks Ltd. (1980) LPELR-1803 (SC). He stated the irregularity in the form of the Oath cannot invalidate the proceeding under Section 4(2) (b) of the Oaths Law. He claimed that the facts of the case of GTB Plc. v. Abiodun (supra) were distinguishable which rendered it inapplicable. He cited Adegoke Motors Ltd. v. Adesanya (1989) 3 NWLR (Pt. 109) 25, Integrated Realty Ltd. V. Odofin (2017) LPELR – 48358 (SC); State v. Gbahabo (2019) 14 NWLR (Pt. 1693) 522; Emeka v. Okadigbo (2012) 18 NWLR (Pt. 1331) 55; Okafor v. Nnaife (1987) 4 NWLR (Pt. 64) 129; Adio v. State (2017) 15 NWLR (Pt. 1587) 65. He opined that the part of the decision in GTB Plc v. Abiodun (supra), relied on by the appellant, was obiter dicta which was not binding on the lower Court. He referred to Nwana v. F.C.D.A. (2004) 13 NWLR (Pt. 889) 128. He maintained that the WSO was competent because it contained statements of attestation and verification. He relied on Obumneke v. Sylvester (2010) All FWLR (Pt. 506) 1945; Oraekwe v. Chukwuka (2012) All FWLR (Pt. 612) 1677; Chukwuma v. Nwoye (2011) All FWLR (Pt. 553) 1942. He observed that the WSO was in substantial compliance with the law. He cited Section 13 of the Oaths Act and Section 11 of the Oaths Law. He stated that a decision of Court would not aim at giving effect to what was not contemplated by law. He relied on Orubu v. NEC (1988) 5 NWLR (Pt. 94) 324. He insisted that the failure to put the attestation did not render the WSO incompetent. He relied on Enyi v. Prodeco International Ltd. (2018) LPELR – 4490 (CA); Mancha v. Emukowate (2017) LPELR – 43113 (CA); Oraekwe v. Chukwuka (supra); Chukwuma v. Nwoye (supra); A.G., Akwa Ibom State v. Akadiaha (2019) LPELR – 46845 (CA). He opined that the alleged non-compliance would not vitiate the suit. He relied on Order 3 Rule 2(1) of the High Court Rules; Spog Petrochemicals Ltd. v. Pan Peninsula Logistics Ltd. (2018) 1 NWLR (Pt. 1600) 321; Enyi v. Prodeco International Ltd. (supra); Mancha v. Emukowate (supra). He concluded that the appellant did not show the miscarriage of justice caused by the purported defect in the WSO to affect the decision. He cited Ayeni v. Sowemimo (1982) 5 SC 60; C.C.G. (Nig.) Ltd. v. Idorenyin (2015) LPELR – 24685 (SC); Abimbola v. Abatan (2001) 9 NWLR (Pt. 717) 66.

Resolution of the issues
It is germane to place on record, upfront, that loads of documentary evidence were furnished before the lower Court by the feuding parties. Interestingly, the case-law gives the Courts the nod to evaluate documentary evidence, see Fagunwa v. Adibi (2004) 17 NWLR (Pt. 903) 544. Admirably, the law, in order to foreclose any injustice, donates concurrent jurisdiction to this Court and the lower Court in evaluation of documentary evidence, see Gonzee (Nig.) Ltd. v. NERDC (2005) 13 NWLR (Pt. 943) 634; Olagunju v. Adesoye (2009) 9 NWLR (Pt. 1146) 225; Ayuya v. Yonrin (2011) 10 NWLR (Pt.1254) 135; Eyiboh v. Abia (2012) 16 NWLR (Pt. 1325) 51; Odutola v. Mabogunje (2013) 7 NWLR (Pt. 1354); CPC v. Ombugadu (2013) 18 NWLR (Pt. 1385) 66; UTC (Nig) Plc. v. Lawal (2014) 5 NWLR (Pt 1400) 221; Ogundalu v. Macjob (2015) 8 NWLR (Pt. 1460) 96, Onwuzuruike v. Edoziem (2016) 6 NWLR (Pt. 1508) 215, Ezechukwu v. Onwuka (2016) 5 NWLR (Pt. 1506) 529, C.K. & W.M.C. Ltd. v. Akingbade (2016) 14 NWLR (Pt. 1533) 487; Emeka v. Okafor (2017) 11 NWLR (Pt. 1577) 410; Okoro v. Okoro (2018) 16 NWLR (Pt. 1646) 506. D.M.V (Nig) Ltd. v. NPA (2019) 1 NWLR (Pt 1652); Olomoda v. Mustapha (2019) 6 NWLR (Pt. 1667) 36. I will tap from this co-ordinate jurisdiction in the appraisal of the sea of documents in the appeal. Having been adequately fortified by the above position of the law, I will proceed to resolve the eleven nagging issues in this appeal.

In an abiding loyalty to the injunction of the law, I will settle the jurisdictional issues first. The law compels the Courts to accord premier attention to issue of jurisdiction, which is numero uno in adjudication, when raised in any proceedings, see Okwu v. Umeh (2016) NWLR (Pt. 1501) 120; Brittania-U (Nig.) Ltd. v. Seplat Pet. Co. Dev. Ltd. (2016) 4 NWLR (Pt.1503) 541; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193; PDP v. Umeh (2017) 12 NWLR (Pt. 1579); APC v. Nduul (2018) 2 NWLR (Pt. 1602) 1; Adama v. Maigari (2019) 3 NWLR (Pt. 1658) 26; APC v. Lere (2020) 1 NWLR (Pt. 1705) 254. The reason the law, in its wisdom, insists on prime consideration of jurisdictional issue is obvious. Where a Court is drained of the jurisdiction to entertain a matter, the proceeding germinating from it, no matter the quantum of diligence, dexterity, artistry, sophistry, transparency and objectivity injected into it, will be trapped in the intractable web of nullity, see Elugbe v. Omokhafe (2004) 18 NWLR (Pt. 905) 319; Lokpobiri v. Ogola (2016) 3 NWLR (Pt. 1499) 328, Garba v. Mohammed (2016) 16 NWLR (Pt. 1537) 144; Isah v. INEC (2016) 18; NWLR (Pt. 1544) 175. Hence, I will obey this legal commandment so as not to insult the law..

The foremost issue of jurisdiction, among the college of army of issues in the appeal, is located in the appellant’s issue two. The issue, though a seemingly stubborn one, is canalised within a narrow compass. It chastises the lower Court’s finding on the legality/propriety of the first respondent’s action without fulfilling the mandatory injunction of Guidelines for the Licensing, Operations and Regulation of Credit Bureaus in Nigeria by the Central Bank of Nigeria (the CBN Guidelines) before approaching the lower Court for redress. In other words, the issue is hinged on the disrespect for the doctrine of exhaustion of local remedy in a legislation. The doctrine connotes that a party must accomplish all internal remedies, donated to him by a statute, before approaching a Court for redress. Where a party ignores harvesting them, his action will be declared premature and impotent to activate/ignite the jurisdiction of the Court to hear it. The concept has received the blessing of the case-law in flood of authorities, see Eguamwense v. Amaghizemwen (1993) 9 NWLR (Pt. 315) 1, Bamisile v. Osasuyi (2007) 10 NWLR (Pt. 1042) 225; Aribisala v. Ogunyemi (2005) 6 NWLR (Pt. 921) 212; Ogologo v. Uche (2005) 4 NWLR (Pt. 945) 226; Awoyemi v. Fasuan (2006) 13 NWLR (Pt. 996) 86; Owoseni v. Faloye (2005) 14 NWLR (Pt. 946) 719; Okomalu v. Akinbode (2006) 9 NWLR (Pt. 985) 338; Unilorin v. Oluwadare (2006) 14 NWLR (Pt. 1000) 751; Aladejobi v. NBA (2013) 15 NWLR (Pt. 1376) 66; Kayili v. Yilbuk (2015) 7 NWLR (Pt. 1457)26; Bukoye v. Adeyemo (2017) 1 NWLR (Pt. 1546) 173; A.G., Kwara State Adeyemo (2017) 1 NWLR (Pt. 1546) 210; Magbagbeola v. Akintola (2018) 11 NWLR (Pt. 1629) 177. The wisdom for the doctrine is, inter alia, to prune down the number of “dispute that eventually find their way into Court”,Kayili v. Yilbuk (supra) at 83, per Kekere-Ekun, JSC. Thus, it is a similitude of alternative dispute resolution.

The issue is hedged on the interpretation of the provision of Sections 6.1, 6.2, 6.3 and 6.4 of the CBN Guidelines. It was admitted as exhibit N and wrapped between pages 237 — 2631, Volume l, of the record. It is a subtle summon on the interpretative jurisdiction of this Court. Due to the kingly and decisive position of the provision, I will pluck it out from where it is domiciled in the record, ipsissma verba, as follows:
6.1 A holder/data subject has the right of unhindered access to inspect his or her credit information at any credit bureau.
6.2 Where the holder/data subject believes that the information contained in the database is inaccurate he or she may request at review.
6.3 Any inaccuracy identified or observed shall be promptly remedied by the data provider.
6.4 The credit bureau shall review and investigate any disputed information, provide a response to the holder/data subject of its findings and correct any potential misrepresentation within ten (10) working days of receiving the complaint.
6.8 All parties to a credit bureau related dispute shall have recourse to the CBN.

Incontestably, the provision resembles an illustration of exhaustion of internal remedy in law.

By virtue of the provision of Section 318 of the Constitution, as amended, the fons et origo of our laws, “Act” “means any law made by the National Assembly and includes any law which takes effect under the provisions of this Constitution as Act of the National Assembly”. The selfsame section defines “Law” to mean “a law enacted by the House of Assembly of a State”, see Akintokun v. LPDC (2014) 13 NWLR (Pt. 1423) 118, Ukpong v. Comm. For Finance (2006) 19 NWLR (Pt. 1013) 187; A—G., Kano State v. A. – G., Fed. (2007) 6 NWLR (Pt. 1092) 164; A.-G., Lagos State v. A.-G., Fed. (2004) 18 NWLR (Pt. 904). 1; Sections 18(1) and 37 of the Interpretation Act, Cap. 123, Laws of the Federation of Nigeria, LFN, 2004.

It is not in doubt that the CBN Guidelines, which transfigured into exhibit N, trace their paternity and vitality to the provision of Section 57 of the Central Bank Act, 2007. However, in the eyes of the law, it is totally divorced from a statute enacted/passed by the legislature. It falls within four walls of subsidiary legislation as ordained in Section 37 of the interpretation Act. Indeed, the apex Court has decreed, with the air of finality, that a guideline or policy statement is not law, see Statoil (Nig.) Ltd. v. Inducon (Nig.) Ltd. (2021) 7 NWLR (Pt. 1774) 1. It admits of no argument that in all the authorities displayed above, wherein the Supreme Court deployed the doctrine of exhaustion of local remedies, involved interpretation of statute – a law duly passed by the legislature. In order to concretise/fortify this viewpoint, I will highlight a few of those authorities. In Eguamwense v. Amaghizemwen (supra), the locus classicus on the doctrine, the apex Court was faced with the construction of Sections 21 and 22 of the Traditional and Chiefs Edict No. 16 of 1979 of Bendel State. The provision of Section 22 (2) – (7) of the Chiefs Law of Ondo State, 1978 fell for interpretation in Aribisala v. Ogunyemi (supra). In Ogologo v. Uche (supra) the Supreme Court was confronted with the construction of the provision of Section 15 of the Traditional Rulers and Autonomous Communities Law (Edict No. 11) 1 1981 of Imo State. The case of Owoseni v. Faloye (supra) was decided on the footing of the provision of Section 13(4) – (7) of the Chiefs Edict (Amendment) 1991 of Ondo State. The provision of Section 22 (5) of the Chiefs Law of Oyo State, 1978 was interpreted in Okomalu v. Akinbode (supra). In Bukoye v. Adeyemo (supra) and A.-G., Kwara State v. Adeyemo (supra), the apex Court dealt with the provision of Section 3(3) of the Chiefs (Appointment and Deposition) Law, Cap. C9, Laws of Kwara State, 2006. In Kayili v. Yilbuk (supra), Section 3 (2) of the Chiefs (Appointment and Deposition) Law of Northern Nigeria, 1963 was presented for interpretation before the apex Court. In Magbagbeola v. Akintola (supra) the apex Court construed the provision of Section 20 of the Chiefs Law, Cap 25, Laws of Osun State, 2002.
​This brief legal anatomy on domestic remedy in legislation, with due reverence, exposes the poverty of the appellant’s seemingly dazzling argument on the efficacy and satisfaction of the provision of Section 6 of the CBN Guidelines, exhibit N, as a condition-precedent vis-a-vis the first respondent’s cause of action. The provision of the CBN Guidelines were/are impotent to put the first respondent’s action in an incubation pending its satisfaction by it. The lower Court’s ultimate finding, at page 2379, lines 15 – 21; volume V, of the mountainous record, is unassailable. The action was not caught in the intractable web of the doctrine of exhaustion of local remedy in an enactment. On this score, the lower Court did not run foul of the law when found that the first respondent’s suit, which mothered the appeal, was not enmeshed in the inescapable nest of doctrine of exhaustion of internal/domestic remedy in a statute. Contrariwise, it properly assumed jurisdiction over the suit. In the end, I have no choice than to resolve the issue two against the appellant and in favour of the first respondent.

Having dispensed with issue two, I hope to handle issue nine. The reason for the leapfrog over the other issues is this. The issue orbits around the appellant’s right to fair hearing. It is rudimentary law that “once there is such a denial of the said right (right to fair hearing) the only order that could be made on appeal is one for re-trial or re-hearing. This is to enable the appellant to be properly heard,” see Kalu v. State (2017) 14 NWLR (Pt. 1586) 522 at 547, per Nweze, JSC; Danladi v. Dangiri (2015) 2 NWLR (Pt. 1442) 124; C.K. & W.M.C. Ltd. v. Akingbade (supra); Akingbola v. FRN (supra); Ahmed v. Regd Trustees, AKRCC (2019) 5 NWLR (Pt. 1665) 300; Fapohunda v. R.C.C.N. Ltd. (2019) 3 NWLR (Pt. 1658) 163.

Furthermore, once an appellate Court intends to order, or orders, de novo hearing, the law forbids it from treating any other issues in an appeal or points that may arise at the rehearing proceedings, see C. K. & W.M.C. Ltd. v. Akingbade (supra); Ovunwo v. Woko (2011) 17 NWLR (Pt. 1277) 522; Karaye v. Wike (2019) 17 NWLR (Pt. 1701) 355.

The kernel of the appellant’s agitation on the issue is simple. It is that the lower Court eroded/curtailed the appellant’s right to fair hearing when it discountenanced its final written address in the delivery of its judgment which is in the heat of expunction. In this wise, the provision of Section 294(4) of the Constitution, as amended, comes in handy. Being the cynosure of the knotty issue, I will extract it out from where it is engrained in the Constitution, verbatim ac litteratim, thus:
294-(1) Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.
There is no gainsaying the fact that the provision donates to litigating parties the right to render final addresses at the closure of evidence and before judgment. Final address connotes “the last or ultimate speech or submission made to the Court in respect of issue before it, before the delivery of judgment. It is the last address before the delivery of judgment”. see Ijebu-Ode L.G. v. Adedeji Balogun & Co. (1991) 1 NWLR (Pt. 166) 136 at 156, per Karibi-Whyte, JSC, Sodipo v. Lemminkainen Oy (1985) 2 NWLR (Pt. 8) 547; Mustapha v. Governor of Lagos State (1987) 2 NWLR (Pt. 58) 539; Kalu v. State (2017) 14 NWLR (Pt. 1586) 522. The caustic effect of denial of addresses to parties vis-a-vis proceedings is wrapped in Ndu v. State (1990) 7 NWLR (Pt. 164) 550, (1990) 21 NSCC (Pt. 3) 505. Therein Akpata, JSC, succinctly, stated:
It is generally accepted that the hearing of addresses from counsel before delivery of judgment is an important exercise in judicial proceedings in our Courts. The entire proceedings may be declared a nullity if a counsel is denied the right to address the Court at the close of evidence.
See also, Obodo v. Olomu (1987) 3 NWLR (Pt. 59) 111/(1987) 2 NSCC, vol. 18, 824 at 831; Niger Construction Co. Ltd. v. Okugbeni (1987) 11/12 SCNJ 113/(1987) 4 NWLR (Pt. 67) 787; Ayisa v. Akanji (1995) 7 NWLR (Pt. 406) 129; Kalu v. State (supra).

Though the right of address, being a constitutional right, is inalienable, it is personal to the party beneficiary. Put simply, once a Court avails a party the right to address it, he can decide to discard it by way of waiver, see Ndu v. State (supra); Ayisa v. Akanji (supra).

It is important to catalogue the gains of final address as contemplated by the sacrosanct provision of Section 294(1) of the Constitution as amended. Address of counsel, though unable to cover lack of evidence, are designed to aid the Courts to appreciate the nature, strength and weakness in the cases of parties. It has the potential to bend the scale of justice in favour of a party who presents scintillating address, laced with alluring lexical dexterity, demonstrative of impregnable advocacy. It is on account of its benefits to the Court that it ranks second in the corpus of the three most important elements of a trial: the first and last being hearing of evidence and judgment respectively, see Okeke v. State (2003) 15 NWLR (Pt. 842) 25; Kalu v. State (supra).

In due fidelity to the desire of the law, I have consulted the record: the spinal cord of every appeal. My port of visit is at the residence of the lower Court’s 99-page prolix judgment which monopolises pages 2341 – 2439, volume V, of the elephantine record. I have perused it with the finery of a toothcomb. Admirably, it is rebellious to ambiguity.

At page 2378, lines 4 — 17, volume V, of the wordy record, the lower Court declared:
I hold therefore, that the Claimant’s cause of Action is founded squarely on the Tort of Injurious Falsehood (and not on the Tort of libel). I hold that to the extent that the issues for determination formulated and relied on respectively by both Counsel to the 1st and 2nd Defendants, together and contained in their respective Final Written Addresses misconceived and erroneously contest a cause of action based on the Tort of Libel instead of the Tort of Injurious Falsehood, it amount to an irrelevant and fatal frolic outside the legal scope of the cause of action at stake in this Suit. Accordingly, both Final Addresses (and the issues for determination therein) upon which the two Addresses are based on the 1st and 2nd Defendants respectively dated 13/02/2017 and 4/4/2016 and the issues for determination therein upon which the arguments canvassed in both Final Addresses are based are misconceived, irrelevant, go to no issue and are discountenanced forthwith.

This excerpt, which is disobedient to equivocation, amply and showcases the lower Court’s justification for the discountenance of the appellant’s final written address: lack of connection/nexus or relevance between it and the first respondent’s cause of action. It is decipherable from the record, the touchstone of the appeal, that the appellant filed its final written address on 13th February, 2017. The lower Court highlighted the appellant’s final address, inter alia, at the dawn of its judgment. It fully utilised it while considering the preliminary objections which it dedicated pages 2353-2377, volume V, of the record for the exercise. The appellant filed a written reply on points of law on 25th April, 2017. A microscopic examination of the judgment clearly indicates that it is dotted with the lower Court’s constant/frequent references and utilisation of the appellant’s written reply on points of law. This is manifest in pages 2383, 2388, 2391 and 2418, volume V, of the huge record. It stems from these extracts, warehoused in the records, the keystone of the appeal, that the appellant, through counsel, delivered its address before the lower Court in keeping with the sacred provision of Section 294(1) of the Constitution, as amended, the fons et origo of our laws. Indeed, it enjoyed the double procedural advocacy, delivery of written address and oral adumbration, with the corresponding response by its adversary, the first respondent. It flows that the appellant was duly accorded equal treatment, opportunity and consideration with its opponent, the first respondent, vis-a-vis the delivery of final written address. It must be underscored, apace, that the bounden duty of the Court, whether trial or appellate, is to provide the enabling and hospitable environment/milieu as well as grant the feuding parties equal chances to present their cases in the temple of justice. To my mind, the lower Court, in an unbiased manner, created the egalitarian and congenial atmosphere for the appellant to deliver its final written address.

It appears that the appellant erected the gravamen of its grouse on the lower Court’s judicial act of discountenance of its final written address on the premises of irrelevancy. The point must be stressed that its complaint is totally on a different wicket. I think, with due respect, learned appellant’s senior counsel mixed up the issues. There is a wide dichotomy/gulf between preventing a party from delivery of address and jettisoning an address on account of irrelevance. The two are divergent streams in the variegated tributaries of adjectival law. They are mutually exclusive. While the want of the former, non- delivery/presentation of address, in deserving circumstances, can denude a party’s right to fair hearing, the presence of the latter, expulsion of an address, may be impotent to impregnate denial of right to fair hearing. The aftermath is plain. The lower Court’s expunction of the appellant’s final written address cannot, under any guise or stretch of elastic imagination, tantamount to an infringement of its inalienable right to fair hearing as enshrined in Section 36(1) of the Constitution, as amended. In effect, the appellant’s inviolate right to fair hearing, as it relates to presentation of final written address, was not, in the least, trampled upon by the lower Court. It is, therefore, not available for it to harvest from the sanctuary/vineyard of the beneficent provision of Section 36(1) of the Constitution, as amended. In Adebayo v. A.-G., Ogun State (2008) 7 NWLR (Pt. 1085) 201 at 221 and 222 the apex Court, per Tobi, JSC, admonished:
…The fair hearing provision in the constitution is the machinery or locomotive of justice; not a spare part to propel or invigorate the case of the user. It is not a casual principle of law available to a party to be picked up at will in case and force the Court to apply it to his advantage. On the contrary, it is a formidable and fundamental constitutional provision available to a party who is really denied fair hearing because he was not heard or that he was not properly heard in the case.
The magisterial pronouncement, in the ex cathedra authority, with due respect, drowns the appellant’s agitation on the issue. The lower Court’s decision, as it relates to appellant’s delivery and usage of final written address, was not guilty of the charge of violation of its right to fair hearing levelled against it. It is a pseudo-charge that is uncharitable and unsustainable. In fact, all the strictures, which the appellant’s learned senior counsel rained against the finding, are, with due respect, idle and peter into insignificance. In the result, I am left with no option than to resolve the issue nine against the appellant and in favour of the first respondent.

I will bypass issue ten and take issue eleven. It queries the correctness of the lower Court’s failure to strike out the written statement on oath of CW1 (the oath) which did not comply with the mandatory provision of the Oaths Law of Lagos State. The focus of the appellant’s complaint is that the oath does not contain the statutory declaration/conclusion statement: “I do solemnly and sincerely declare that I make this solemn declaration conscientiously believing same to be true in accordance with the Oaths Law”. The appellant persisted that the statutory declaration, as enjoined by Section 11 of the Oaths Law, is mandatory and its absence rendered the oath incompetent.
​I have, in a bid to pacify the law, visited the record at the abode of the CW1’s Oath which occupies pages 21 — 33, volume 1, of the record, I have subjected the 40-paragraph oath to a merciless scrutiny. Unarguably, the oath, at its twilight, is void of the conclusion statement outlined above. The idea of offering evidence by dint of written statement on oath is a budding/green regime in adjudication. It is a method which grants witnesses the liberty to testify by deposition. Deposition signifies “a statement of a witness made under oath out of Court… Depositions are all matters of procedure as they are adjectival in nature and content”, see Buhari v. INEC (2008) 19 NWLR (Pt. 1120) 246 at 377 and 378, per Tobi, JSC. Indubitably, the admissibility of evidence, of all species, is regulated by the Evidence Act. In Buhari v. INEC (supra), the contest circled around the validity and admissibility of oaths/depositions of witnesses. Tobi, JSC, incisively, outlined four instances that will make an oath inadmissible, namely: if it is sworn before (a) a person on whose behalf the same is offered, (b) his legal practitioner, (c) a partner, (d) a clerk of his legal practitioner. It flows from this ex cathedra authority, a written statement on oath will be inadmissible if it is afflicted with any of the four negative elements adumbrated above. It is not in doubt that the oath of the CW1, which is sought to be expelled, is not plagued by any of these negative elements as to drain it of its validity and admissibility.
That is not all. The selfsame Oaths Law makes allowance for omission or irregularity as to oath under Section 4 thereof. In Section 4(2) (b) and (c), it provides:
(2) No irregularity in the form in which an oath is administered or taken shall –
(b) invalidate proceedings in any Court; or
(c) render inadmissible evidence in or in respect of which an irregularity took place in any proceedings.
​It is a recognized canon of interpretation of statutes that provisions of any legislation are not to be subjected to fragmentary interpretation. Put simply, mutually-related provisions of any statute should be married together and given holistic construction in order to garner the intention of the law maker, see NPA Plc. v. Lotus Plastic Ltd. (2005) 19 NWLR (Pt. 959) 158; Oyeniran v. Egbetola (1997) 5 SCNJ 94; Matari v. Dangaladima (1993) 2 SCNJ 122; A. – G., Abia State V. A.- G., Fed, (2005) 12 NWLR (Pt. 940) 452; Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1/(2005) 8 MJSC 1; Elelu-Habeeb v. A.-G., Fed. (2012) 13 NWLR (Pt. 1318) 423; A.-G., Lagos State v. A.-G. Fed. (2014) 9 NWLR (Pt. 1412) 217; Abegunde v. O.S.H.A. (2015) 8 NWLR (Pt. 1461) 314; Nobis-Elendu v. INEC (2015) 16 NWLR (Pt. 1485) 197; PDP v. Sheriff (2017) 15 NWLR (Pt. 1588) 219.
In due allegiance to the injunction of the law, I have given a communal/conjunctive reading to the mutually-related provisions of Sections 4 (2) (c) and 11 of the Oaths Law. It is my humble view that the provision of Section 4(2) (c) neutralizes the mandatoriness of the provision of Section 11 of the Oaths Law. Put bluntly, Section 4 (2) (c) douses the effervescent operation of Section 11 of the Oaths Law. That is to say, any irregularity in the form of an oath will not be fatal to the administration of oath under Section 11 of the Oaths Law. It follows that the CW1’s oath will be salvaged under the saving shelter of Section 4(2) (c) of the Oaths Law. The absence of conclusion statement is drained of the potential to ruin the CW1’s oath or smear it with an indelible incompetence which will snowball into its inadmissibility. The oath of CW1 is not marooned in the murky ocean of inadmissibility on the footing of the lack of the conclusion statement/declaration thereon. On the contrary, I am compelled by the salvaging provision of Section 4(2) (c) of the Oaths Law, to crown the CW1’s oath with the deserved toga of competence and validity. I am dispossessed of any justification, in law, to ostracise the CW1’s written statement on oath of 16th May, 2013. I welcome it to this appeal. I accord a wholesale affirmation to the lower Court’s impeccable finding on its competence.

​In the light of the above legal exposition, the scintillating argument of the appellant’s senior counsel smells of an enticing supplication to technicality. Indisputably, presently, the Courts have evolved the paradigm shift from the pangs of technicality to dishing out substantial justice: “Justice fairly administered accordingly to rules of substantive law, regardless of any procedural errors not affecting the litigant’s substantive right, a fair trial on the merits,” see Bryan A. Garner(ed) Black’s Law Dictionary (8th edition) page 881. Technicality means a harmless error/mistake that does not go to the root of a case, see Olley v. Tunji (2013) 10 NWLR (Pt. 1362) 275. The “spirit of justice does not reside in form and formalities, nor in technicalities,” see Bello v. A.-G., Oyo State (1986) 5 NWLR (Pt. 45) 828 at 886, per Oputa, JSC; Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205. Substantial justice and technical justice, arch enemies in adjudication, had been in a protracted imaginary battle on which to win and arrest the attention of the Nigerian Courts. However, in the process of the juridical duel, the case-law, rightly, intervened and slaughtered technicality and buried it deeply under the temple of substantial justice. To accede to the appellant’s request will be akin to resurrecting the deceased technicality. This will be an affront to the law. I resolve the issue 11 against the appellant and in favour of the first respondent.

I beat a retreat/reverse to deal with issue three. It is a vexed issue but its focus is plain. It appertains to the admissibility of exhibit L2 – the Credit Status Report (CSR) of the first respondent. During the plenary trial in the lower Court, the appellant greeted its admission with a stiff opposition. Before this Court, the appellant re-registered its contest against it. The appellant’s main anchor in the protestation is that the document flouted the mandatory provision of Section 84(4) of the Evidence Act. It is a gentle invitation to this Court to explore the undulating contours of the ambitious provision in the domain of Evidence Law.

There is one tangential point that cries for the attention and resolution by the Court. It borders on the lower Court’s declaration of being functus officio over the consideration of the admissibility of the document – exhibit L2. The Latin expression functus officio simply means, “task performed”. In the realm of adjudication, it implies that a Judex cannot give a decision or make an order on a matter twice. In other words, once a Judge gives a decision or makes an order on a matter, he loses the competence or jurisdiction to give another decision or order on the same matter, see, Mohammed v. Hussein (1998) 11/12 SCNJ 136 at 163 – 164; Olowu v. Abolore (1993) 6 SCNJ (Pt. 1) 1; Inakoju v. Adeleke (2007) 4 NVVLR (Pt. 1025) 427. To do otherwise will be akin to the injudicious act of a Court sitting on appeal over its own decision.
This ageless principle of law accommodates a litany/legion of exceptions. One of the cognisable exemption is deeply, planted in rejection of admitted inadmissible evidence. In the course of proceedings in a Court, trial or appellate a piece of evidence (oral or documentary) may by oversight or inadvertence, be admitted, either in a bench or considered ruling, by a Court and that Court, whether of first instance or appellate, and if it later discovers at the time of judgment, that that particular evidence is at all event/costs inadmissible in law, then it is entitled to reverse its earlier decision admitting that evidence and rejecting it in toto, see National & Properties Co. Ltd. V. Thompson Organisation Ltd. (1969) 1 All NCR 138; Abubakar v. Chuks (2007) 18 NWLR (Pt. 1066) 386; Shanu v. Afribank (Nig.) Plc. (2002) 17 NWLR (Pt. 795) 185. Thus, the appellant’s entreaty to the lower Court to reject the admission of the document, exhibit L2, is properly situated within the perimeter of the known exception to the doctrine of functus officio ex-rayed above.

The law grants a trial Court the unbridled liberty to expunge admitted inadmissible evidence at the judgment stage. An appellate Court enjoys the same right so far as the document is inherently inadmissible. The rationale behind this is simple. A Court of law is drained of the jurisdiction to act on an inadmissible evidence in reaching a decision, see Alade v. Olukade (1976) 2 SC 183; IBWA v. Imano Ltd. (2001) 3 SCNJ 160; Durosaro v. Ayorinde (2005) 8 NWLR (Pt. 927) 407; Namsoh v. State (1993) 5 NWLR (Pt. 292) 129; Abubakar v. Joseph (2008) 13 NWLR (Pt. 1104) 307; Abubakar v. Chuks (2007) 18 NWLR (Pt. 1066) 389; Phillips v. E.D.C. & Ind. Co. Ltd. (2013) 1 NWLR (Pt. 1336) 618; Nwaogu v. Atuma (2013) 11 NWLR (Pt. 1364) 117. Flowing from the foregoing, the lower Court’s declination to consider its propriety or otherwise of the admission of exhibit L2 under the blank canopy of functus officio, with due deference, falls outside the ambit of the law.

I now turn to the heart of the issue that will define its destiny. The crux of the issue is obedient to clarity. It derides the lower Court’s admission of exhibit L2 which is reflected at pages 82-90, volume I, of the record. The appellant’s coup de main is founded on first respondent’s violation of the provision of Section 84(1 )(2) and (4) of the Evidence Act; 2011. For this reason, I will at the expense of verbosity, but borne out of necessity, extract the provision from where it is lodged in the Evidence Act, 2011. It provides:
(1) In any proceedings a statement contained in a document produced by a computer shall be admissible as evidence of any fact stated in it of which direct oral evidence would be admissible, if it is shown that the conditions in Subsection (2) of the Section are satisfied in relation to the statement and computer in question.
(2) The conditions referred to in Subsection (1) of this Section are:-
(a) that the document containing the statement was produced by the computer during a period over which the computer was used regularly to store or process information for the purpose of any activities regularly carried on over that period, whether for profit or not, by anybody, whether corporate or not, or by any individual;
(b) that over that period, there was regularly supplied to the computer in the ordinary course of those activities information of the kind contained in the statement or of the kind from which the information so contained is derived;
(c) that throughout the material part of that period the computer was operating properly or, if not, that in any respect in which it was not operating properly or was out of operation during that part of that period was not such as to affect the production of the document or the accuracy of its content; and
(d) that the information contained the statement reproduces or is derived from information supplied to the computer in the ordinary course of those activities.
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this Section, a certificate doing any of the following things, that is to say-
(a) identifying the document containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in Subsection (2) above related, and purporting to signed by a person occupying a responsible position in relation to the operation of the relevant device of the management of the relevant activities, as the case may be, shall be evidence of the matter stated in the certificate; and for the purpose of this Subsection it shall be sufficient for matter to be stated to the best of the knowledge and belief of the person stating it.
In keeping with the tenet and spirit of the law, I have given a merciless scrutiny to the document, exhibit L2, which is in the heat of expulsion by the appellant. It falls squarely, within the wide definition of document as prescribed in Section 258 of the Evidence Act, 2011 because its contents are “expressed or described upon any substance by means of letters, figures or marks”. It is included as a document in the provision, see Dickson v. Sylva (2017) 8 NWLR (Pt. 1567) 167. It is procured from computer which according to the definition prescription of Section 258 of the Evidence 2011, denotes “any device for storing and processing information, and any reference to information being derived from other information is a reference to its being derived from it by calculation, comparison or any other process”, see Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205. It stems from these, that the exhibit L2, in question, is a classic exemplification of internet/computer-generated document.
It is not disputable that the document, exhibit L2, did not meet the compulsive conditions in Section 84 (2) and (4) of the Evidence Act, 2011 chronicled above. In Dickson v. Sylva (2017) 8 NWLR (Pt. 1567) 167 at 203, the oracular jurist, Nweze, JSC, incisively, stated:
In actual fact, Section 84 (supra) consecrates two methods of proof, either by oral evidence under Section 84(1) and (2) or by a certificate under Section 84(4). In either case, the conditions stipulated in Section 84(2) must be satisfied.
See, also, Kubor v. Dickson (supra); Omisore v. Aregbesola (supra); Dauda v. FRN (2018) 10 NWLR (Pt.1626) 169; Onuoha v. Ubah (2019) 15 NWLR (Pt. 1694) 1. The rationale behind the satisfaction of the requirements of the sacred provision is to “ensure the authenticity of the document and the integrity of the procedure used to bring it into being”, Dickson v. Sylva (supra), at 233, per Kekere-Ekun, JSC.

in an avowed bid to amputate the long arm of the provision of Section 84 of the Evidence Act, 2011, the first respondent invented two defences to insulate and consolidate the admission of the document. The first is that the document is an annexure to another document and exempt from the requirement of the provision. Undeniably, the document, exhibit L2, is an appendage to exhibit D which incorporated it by reference. However, the exhibit L2 is not a progeny or part and parcel of exhibit D. Even though there appears a symbiotic relationship between but one is an independent of the other. They are distinct and separable both in their contents, context and imports. A satisfaction of the requirements of the provision by one does not, in the least, serve for the other and vice versa. This defence of annexure is a feeble defence which is weak-kneed to absolve exhibit L2 from the mandatory compliance with the provision of Section 84 of the Evidence Act, 2011.

The first respondent’s second defence rotates around its disclaimer of the exhibit L2 as its non-producer, Interestingly, in Dauda v. FRN (supra), at 189, Aka’ahs, JSC, proclaimed:
There is no doubt that the documents are computer generated which the EFCC got from various banks during investigation. It is therefore presumed that before the banks surrendered them to EFCC, they must have certified that the contents of the statement of account contained therein were correct.
Indisputably, the exhibit L2 owes its parentage to the banks the appellant and the third respondent. To this end, it is my considered view that it can take benefit under the canopy of the presumption of certification accorded to computer–generated document issuing from a bank. The document does not exhibit any impairment or debilitating deficit to deny it the enjoyment of the presumption of due certification; a fortiori one endorsed by the Apex Court.

​Besides, this aspect, non-owner of a computer-generated document, to my mind, is not contemplated by the provision of Section 84 of the Evidence Act, 2011. Nor did the contending parties furnish the Court with any authority on the situation. The defence compels/propels me to invoke the doctrine of comparative jurisprudence by inviting foreign decisions on the knotty point/defence. This judicial voyage is legitimate in the sense that Nigerian Courts are permitted to by persuaded by foreign decisions whilst interpreting identical statues, see A.-G., Rivers State v. A.-G. , Akwa Ibom State (2011) 8 NWLR (Pt. 1248) 31 at 177. This is more so when such foreign/alien decisions will “be useful in the expansion of the frontier of our jurisprudence”, see Araka v. Egbue (2003) 17 NWLR (Pt. 848) 1 at 22 per Tobi, JSC. In the same vein, Nigerian Courts are allowed to tap from the knowledge of all of shades of scholars in determinations of matters, see Usiobaifo v. Usiobaifo (2005) 3 NWLR (Pt. 913) 665.
In this regard, I take a legal trip to India – a commonwealth country like Nigeria. InShathi Mohammed v. The State of Himachal Pradesh (JJ 2018 (2) SC 49), the Indian Supreme Court was confronted with the interpretation of the provision of Section 65 B(4) the Indian Evidence Act which is in pari materia with our Section 84 (4) of the Evidence Act, 2011 on the certificate requirement in electronic evidence. The Supreme Court held:
Accordingly, we clarify the legal position on the subject on the admissibility of the electronic evidence, especially by a party who is not in possession of device from which the document is produced. Such a party cannot be required to produce certificate under Section 65 B (4) of the Evidence Act.
In a virgin and pioneer book: Electronic Evidence, revised edition (Lokoja, Jurist Publication Series 2019) at page 262; the prolific writer and learned jurist, Hon. Justice Alaba Omolaye-Ajileye; propounded:
The point had earlier been made in the previous chapter that the scope of the applicability of Section 84(4) should be limited to a proponent whose computer device produced the electronic document. In other words, production of a certificate as an essential element of process of authentication should be made mandatory where a proponent is in control of the device that produced the document. It is, therefore, suggested that the law should not be too strict on a party whose computer did not produce the electronic document and it becomes impossible for him to produce same. This should be treated as an exception to Section 84 (4), in the interest of justice. This is because, it will amount to a denial of justice if an authentic document is kept out of the consideration of the Court by reason of the fact that a certificate is not produced by a party who cannot possibly secure its production. In this technological age, nothing more unjust can be conceived!
By happenstance, a party may wish to rely on or be a proponent of a document which germinates from a computer that is outside his control. In that wise, it is obvious that he will lack the capacity and capability to attest to the continuous proper operation, in the ordinary course of business/activity, of the mother computer/device or provide an endorsed certificate showcasing the manner of production of the document he proposes to furnish to the Court. To compel him to do either evinces a natural and evidential impossibility. That will, no doubt, make mincemeat of the legal maxim that the law does not command the impossibility – Lex non mogit ad impossibiia. Such compulsion will eclipse the very ends of justice – the attainment of which is the primary duty of the Court. It is deducible from the record, the bible of the appeal, that the trilogy of the appellant, the second and third respondents were involved in the generation of the exhibit L2 in question. Put differently, the first respondent was not particeps in the chain of production that midwifed the CSR – exhibit L2. Indeed, evidence on this galore. Neither the first respondent nor its computer was involved in its production. Therefore, the first respondent, was/is not in control of the computer, which gave birth to it, to equip it with the knowledge that will enable it authenticate its continuous workability. Nor can it properly issue a certificate disclosing the process of its production. To laden this burden on it will be tantamount to foreclosing or shutting the document out of the temple of justice. It, certainly, cannot be the intention of the legislature that Section 84 of the Evidence Act, 2011 should strip a party, who is not the owner/maker of computer-generated-document, of his right to present electronic evidence, meant for the prosecution or defence of his case in a Court of law. In effect, the lower Court was firma terra in law when it admitted the first respondent’s Credit Status Report (CSR) as an exhibit – exhibit L2. l, too, welcome the document to the appeal, I deck it with the deserved cap of admissibility. I resolve the issue three against then appellant and in favour of the first respondent.

Let me leap to consider issue seven since it relates to the propriety of exhibit L2, it bemoans the lower Court’s finding that the Credit Status Report (CSR), exhibit L2, was connected to exhibit D – the letter from the third respondent. The issue falls within a slim scope.

It is not matter of disputation that the two exhibits, the letter and CSR fall within the province of documents in that their contents are “expressed or described upon any substance by means of letters, figures or marks”, see Section 258 of the Evidence Act, 2011. Nota bene, the law grants to the Courts the unbridled licence to read a document holistically so as to reach and garner harmonious results of its content, see Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) 377/(1987) SCNJ 98; Unilife Dev. Co. Ltd. v. Adeshigbin (2001) 4 NWLR (Pt. 707) 482, ACB v. Apugo (2001) 5 NWLR (Pt. 707) 482; Mbani v. Bosi (2006) 11 NWLR (Pt. 991) 400; Bunge v. Gov. Rivers State (2006) 12 NWLR (Pt. 995) 573; Agbareh v. Mimra (2008)2 NWLR (Pt. 1071) 378; Nigerian Army v. Aminun-Kano (2010) 5 NWLR (Pt. 1188) 429; BFI Group v. BPE (2012) 18 NWLR (Pt. 1332) 209, Julius Berger Nig. Plc. v. T.R.C.B. Ltd. (2019) 5 NWLR (Pt. 1665) 219. In addition, in construing a document, the Court is enjoined by law to apply the literal rule as a canon of interpretation, id est, to accord the words employed therein their ordinary grammatical meaning without any interpolations, seeUBN v. Ozigi (1994) 3 NWLR (Pt. 333) 385, UBN Ltd. v. Sax (Nig.) Ltd. (1994) 8 NWLR (Pt. 361) 150; Enilolobo v. N.P.D.C. Ltd. (2019) 18 NWLR (Pt. 1703) 168. I will pay due obeisance to these legal commandments, on canons of interpretation of document, in order not to annoy the law.

The main thrust of the appellant’s complaint is that the exhibit L2, dated 4th December, 2012, predated exhibit D, dated 23rd April, 2013, and could not have influenced the refusal of the first respondent’s application for loan facility. Admittedly, exhibit L2 was anterior to exhibit LD and the sequence appears bizarre and incongruous in the ordinary course of events. In the eyes of the law, “… specific date of commencement can be with retrospective effect, it may commence immediately after or on the date of signing or it may even be in the future”, see APC v. INEC (2015) 8 NWLR (Pt. 1462) 531 at 56, per I.T. Muhammad, JSC (now CJN). Thus, a date, which usually gives birth to a document, can operate retrospectively, instanter or in futuro. From the record, the keystone of the appeal, the third respondent’s only and star witness was DW3 – Adekunle Toyin Yusuf, In the furnace of cross-examination, DW3 explained that the third respondent received exhibit L2 sometime in April, 2013 while the date on exhibit L2 “will appear to be the last date the report was updated”. This concrete piece of evidence was not controverted. In law, pieces of evidence, elicited under the cross-fire of cross-examination, are potent and run pari passu with the ones from evidence-in-chief, see Gaji v. Paye (2003) 8 NWLR (Pt. 823) 583; Akomolafe v. Guardian Press Ltd. (2010) 3 NWLR (Pt. 1181) 338. They belong to the cross-examiner, see Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205. As a matter of fact, the law views evidence procured from the crucible of cross-examination as more reliable and compelling than the ones oozing out of examination-in-chief, seeAdeosun v. Gov., Ekiti State (2012) 9 NWLR (Pt.1291) 581; Okuleye v. Adesanya (2014) 12 NWLR (Pt. 1422) 321.
The crucial piece of evidence unlocks the floodgate of inference: “A conclusion reached by considering other facts and deducing a logical sequence from them,” see Muhammad v. State (2017) 13 NWLR (Pt. 1583) 386) at 420, per Augie, JSC.

The law gives the Courts the latitude to make inferences, see Okoye v. Kpajie (1972) 2 SCNJ 290 reported as Okonkwo v. Kpajie (1992) 2 NWLR (Pt. 226) 633; Akpan v. Bob (2010) 17 NWLR (Pt. 1223) 421; Adebayo v. PDP (2013) 17 NWLR (Pt. 1382); NNPC v. Roven Shipping Ltd. (2019) 9 NWLR (Pt. 1676). I will reap from this unfettered liberty allotted to the Court by the law. It is inferable, irresistibly even, from the impregnable piece of evidence that the birthday of the exhibit L2, 4th December, 2012, its late date of update, was anterior to the first respondent’s application for loan, 20th April, 2013, but at the same time might be posterior to it since it was received by the third respondent in April, 2013. It displaces the appellant’s stand on want of correlation/nexus between it and exhibit D vis-a-vis the suspension of the first respondent’s application for loan facility. The pungent evidence, on its update, serves as sufficient explanation why the exhibit L2 antedated exhibit D. The appellant’s elegant contention, with due respect, based on the critical evidence, is mired in the quicksand of defeasibility.

​That apart, and more importantly too, I have given a microscopic examination to the exhibit D which is wrapped in page 65, volume l, of the record. Admirably, it is comprehension-friendly. Its wordings are precise, succinct and devoid of any tinge of woolliness. On this note, the wordings should be accorded their ordinary grammatical meaning without any embellishments. In paragraph three thereof, it states that “the Bank is unable to process your application further due to the unfavourable credit report received from CRC Credit Bureau Limited” It can be gleaned from the above that the document, exhibit D, had, in unmistakable terms, explicitly blamed the adverse report made by the second respondent in exhibit L2 as the reason for the non-grant of the respondent’s loan application. The third respondent annexed a copy of exhibit L2 to the exhibit D. The act of attachment supplements and fortifies the unrefuted evidence of DW3 on the receipt of the exhibit L2 in April, 2013. The express declaration in exhibit D, on the corrosive effect of the negative report in exhibit L2 on the application, clearly, with due regard, exposes the poverty of the appellant’s diatribes on want of connection between the two documents. In essence; the lower Courts finding of linkage between them is faultless. It will smack of judicial sacrilege to interfere with a finding that has not disclosed any hostility to the law. l, therefore, will not hesitate to resolve the issue seven against the appellant and in favour of the first respondent.

At this juncture, it behoves me to settle issue one. The crux of the appellant’s complaint on the issue falls within a lean scope. It derides the lower Courts finding that the first respondents cause of action is for malicious/injurious falsehood and not defamation.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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To begin with, a cause of action connotes a combination of facts which, if proved or substantiated, entitles a party (plaintiff) to an enforceable right/remedy against a wrongdoer (defendant). It consists of two elements, the wrongful act of the defendant, which bestows cause of action on a plaintiff, and the consequent damage, see Savage v. Uwaechia (1972) 3 SC 214; Omiomeji v. Kolawole (2018) 14 WLR (Pt. 1106) 180; Iliyasu v. Rijau (2019) 16 NWLR (Pt. 1697) 1, Maigari v. Malle (2019) 16 NWLR (Pt. 1697) 69. The content of a writ of summons or statement of claim determines the existence or otherwise of a cause of action, see UBN Plc v. Umeoduagu (2004) 13 NWLR (Pt. 890) 352.

In the first place, I am at a serious difficulty in comprehending the plinth of the appellant’s grouch. The tort of defamation embraces and houses injurious/malicious falsehood, an economic tort against the reputation of financial institutions which occasions/inflicts it with pecuniary losses; as one of its species. In other words, injurious/ malicious falsehood comes within the wide firmament of defamation. Being the legal parent of injurious/malicious falsehood, both exhibit symbiotic relationship. Hence, one cannot be discussed without the other. The chasm which the appellant seeks to draw between the two is unnecessary and peripheral to the action. The appellant, to my mind, is merely drawing a distinction without a difference which is incapable to ruin the prop of the action.

I have, in a bid to appease the desire of the law, made an excursion to the record, the linchin of the appeal, at the abode of the first respondent’s statement of claim which spans pages 5 -18, volume I, of the record. This is because, as already noted, a statement of claim or nature of the cause of action. In this wise, I have given an indepth study to the first respondent’s 38 – paragraph statement of claim with a view to discovering its purport. Admirably, it is submissive to clarity and comprehension. The law commands the Court to read pleading holistically in order to garner a flowing story of it, see Okochi v. Animkwoi (2003) 18 NWLR (Pt. 851) 1; Agi v. PDP (2017) 17 NWLR (Pt. 1595) 366; NNPC vs Roven Shipping Ltd. (2019) 9 NWLR (Pt. 1676) 67.

In total obedience to this injunction, I have given a global examination to the appellant’s pleading. Incidentally, I am unable to locate therein, even with prying eagle-eye of an appellate Court, where the first respondent weaved its claim on defamation simpliciter. The statement of claim, per contra, is dotted and suffused with the critical averment “injurious/malicious falsehood”. There are tons of averments bordering on the pecuniary losses which the injurious falsehood perpetrated on the financial state of the first respondent. The clause dominates and pervades the statement of claim – the main index for assessment of cause of action. From the tenor/phraseology of the facts in the statement of claim, x-rayed above, I have no difficulty in categorizing the first respondent’s cause of action as one that resides within the lean perimeter of injurious/malicious falsehood (trade libel) which the case-law has properly propagated in the wide sphere of tort of defamation. On this score, the lower Court’s finding, which christened the cause of action with the appellation/cognomen of injurious falsehood, is in tandem with the spirit and letter of the law that deserves total approbation by this Court. I resolve the issue one against the appellant and in favour of the first respondent.

Having dispensed with issue, one, I proceed to treat issues four, five, six and eight. A close look at the quartet issues, clearly, reveals that they are intertwined as they share a common mission id est, to puncture the lower Court’s evaluation of the evidence before it on proof of the claim. In the face of this interwoven relationship, l will, in order to conserve the scarce juridical time and for spatial constraint, amalgamate them and fuse their considerations without each issue compromising its identity. The hub of the four issues is clear. It is an onslaught against the lower Court’s evaluation of the evidence. Put bluntly, the appellant accused the lower Court of improper evaluation of evidence because the judgment was against the weight of evidence.

​A castigation of a decision on the premise that a judgment is against the weight of evidence invariably couched as an omnibus ground, connotes that the decision of the trial Court cannot be supported by the weight of evidence advanced by the successful party which the Court either wrongly accepted or that the inference it drew or conclusion it reached based on the accepted evidence, is unjustifiable in law. Also, it implies that there is no evidence, which if accepted, will buttress the finding of the trial Court. Furthermore, it denotes that when the evidence adduced by the complaining appellant is weighed against that given by the respondent, the judgment rendered to the respondent is against the totality of the evidence placed before the trial Court.

In ascertaining the weight of evidence, the trial Court is enjoined, by law, to consider whether the evidence is admissible relevant credible conclusive or more probable than that given by the other party, see Mogaji v. Odofin (1978) 3 SC91: Anyaoke v. Adi (1986) 2 NSCC, Vol. 17, 799 at 806/(1986) 3 NWLR (Pt. 31) 731; Nwokidu v. Okanu (supra) (2010) 3 NWLR (Pt. 1181) 362: Akinlagun v. Oshoboja (2006) 12 NWLR (Pt. 993) 60; Gov., Lagos State v. Adeyiga (2012) 5 NWLR (Pt. 1293) 291; Oyewole v. Akande (2009) 15 NWLR (Pt. 1163) 11; Agala v. Okusin (2010) 10 NWLR (Pt. 1202) 412.

​The law has saddled a trial Court, like the lower Court herein, with the primary duty to evaluate relevant and material evidence, both oral and documentary, after hearing and watching the demeanour of witnesses called by the parties in any proceedings having regard to their pleadings. To discharge that bounden duty, a trial Court must show how and it arrived at its findings of fact and final determination of the issues before it. It has to be cautious and understand the distinction between summary or restatement of evidence and evaluation of evidence which means assessment of evidence and giving them probative value. It appraises evidence by constructing an imaginary scale of justice and putting the evidence of the parties on the two different pans of the scale. Then, it weighs them to determine which is heavier, not in terms of quantity, but quality of the testimonies, See Mogaji v. Odofin (1978) 3 SC 91; Olagunju v. Adesoye (2009) 9 NWLR (Pt. 1146) 225; Oyewole v. Akande (2009) 5 NWLR (Pt. 1163) 11; Ayuya v. Yonrin (2011) 10 NWLR (Pt. 1254) 135; Adusei v. Adebayo (2012) 3 NWLR (Pt. 1288) 534; Odutola v. Mabogunje (2013) 7 NWLR (Pt. 1356) 522; Ndulue v. Ojiakor (2013) 8 NWLR (Pt. 1356) 311; Okoro v. Okoro (2018) 16 NWLR (Pt. 1646) 506; D.M.V (Nig) Ltd. v. NPA (2019) 1 NWLR (Pt. 1652) 1635; Oguntade v. Oyelakin (2020) 6 NWLR (Pt. 1719) 41. I have matched the decision of the lower Court with the positions of law outlined above with a view to identifying their infractions or compliance.

By way of prefatory remarks, as already observed, the first respondent’s action, which transfigured into the appeal is deeply domiciled in the tort of defamation. Defamation has been judicially, defined to embrace imputations which tend to lower a person’s dignity in the estimation of the right thinking members of the society and expose him, the person so disparaged, to hatred opprobrium odium, contempt or ridicule, see Oruwari v. Osler (2013) 5 NWLR (Pt. 1348) 535.

The action is specifically anchored on injurious/malicious falsehood which signifies. “A false and injurious statement that discredits or detracts from the reputation of another’s character, property, product or business” It denotes “The common-law tort of belittling someone’s business, goods or services with remarks that are false or misleading: but not necessarily defamatory” see – Bryan A- Garner et al (eds.) Black’s Law Dictionary, 10th edition (West Publishing Co., US.A., 2014) pages 570 and 1721 respectfully. It bears the other names: – trade libel, slander of goods/title. It is an economic tort that attacks proprietary interest of citizens. In Newbreed Org. Ltd. v. Erhomosele (2006) 5 NWLR (Pt. 974) 499, the locus classicus on injurious falsehood, the Apex Court confirmed the essential elements of this tort, videlicet: (a) That the words complained of were untrue (b) That they were published maliciously (c) That the plaintiff has thereby been caused damage. The lower Court’s finding was that the three ingredients of the cause of action were established by the first respondent.

Now, the appellant’s foremost attack is against the lower Court’s finding of publication of exhibit L2 by the appellant and the second respondent. Publication, which is the lifeline of defamation, means making known of the defamatory material/matter to some persons other than the person of whom it is written, see Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 285;Dairo v. UBN Plc. (2007) 16 NWLR (Pt. 1059) 99. There are an avalanche of evidence, from the record, that the first respondent’s Credit Status Report (CSR), exhibit L2 was authored by the appellant and published to the second respondent which made it known to individual citizens and institutions. The point must be emphasized that the publication was done electronically. In the digital world of today, such dissemination of information, by dint of electronic module that allows unfettered access to citizens, constitutes publication to the whole world. ln any event, the fulcrum of the appellant’s case is not on publication but that it had reasons for publishing the offensive document to other persons. In law, proof of publication means that the plaintiff has established a prima facie cause of action in defamation. The lower Court did not commit any faux pas on publication to magnet the intervention of this Court.

The appellant censured the lower Court’s finding on the falsity of the publication in the face of its employment of the defence of justification to emasculate the case. In the eyes of the law, justification imports an admission of the libelous publication. However, it is a complete defence to defamation and connotes that the imputation is true. The truth of the imputation is an answer to the action not because it negatives malice but because the plaintiff has no right to a character free from imputation and if he has no right to it, he cannot in justice recover damages for the loss of it. It will translate to damnum absque injuria – damage without wrongful act, see Iloabachie vs. Iloabachie (2005) 13 NWLR (Pt. 943) 695; Sule vs. Orisajimi (2019)10 NWLR (Pt. 1681) 513.

The casua belli between the parties is that the publication was untrue. I have situated exhibit L2 with exhibit G. The raison d’etre for the juxtaposition is obvious. It is to ascertain whether the content of exhibit G clothed exhibit L2 with the garment of falsity. Exhibit L2, on close examination, is to the effect that the first respondent was indebted to the appellant in the sum of N553 Million which it had treated as lost. Exhibit G is reflected between pages 191-234, volume l, of the record. It is the judgment of the Federal High Court, Lagos, per C. E. Archibong, J. in Suit No FHC/L/CS/1491/2009 between the first respondent and the appellant. It was delivered on the 6th December, 2010. The fact that the decision, in exhibit G, was on its legal journey, at the measured millipede speed of Court process, to the appellate Courts was of no moment. A fortiori when it was a decision that was handed down by a Court of competent jurisdiction, valid and subsisting until it was set aside. A précis of the decision, deducible from its terminus at page 233, volume I of the record, is that the first respondent was not indebted to the appellant. Exhibit G which came to being on 6th December, 2010 predated exhibit L 2 which was authored on 14th December, 2012. Indeed, exhibit L2 was made months after exhibit G came to life, yet both are diametrically opposed to each other. Nevertheless, the bottomline is that before exhibit L2 was made, exhibit G was in esse and had discharged the first respondent from any liability to the appellant. As a matter of fact, exhibit L2 ought to have captured the content of exhibit G. It stems from exhibit G that the appellant, the author and distributor of exhibit L2, was economical with truth on the financial relationship between them. Exhibit G, which was earlier in time, douses the efficacy of the content of exhibit L2. This is more so as exhibit G was affirmed by this Court in exhibit H, located at pages 335-3553 volume l, of the record, in Appeal No. CA/L/194/2011 on 10th May, 2013. Exhibit G, to all intents and purposes, is a telling evidence that the first respondent was not tucked in the mud of debt/indebtedness to the appellant. Indebtedness implies a state of owing money, or something owed, or debt to another person, see Barbedos and Ventures Ltd. vs. FBN Plc. (2016) 4 NWLR (Pt. 1609) 241. Exhibit G drowns the veracity of indebtedness, which the appellant paraded and brandished, to tarnish the financial reputation of the first respondent. It, the exhibit G, makes the publication in exhibit L2 a quintessence of untruthful credit report. The lower Court’s finding cannot, in the least, constitute an anfront to the law.

Another grudge, nursed by the appellant, pertains to the lower Court’s finding on the defence of qualified privilege mounted against the case by the appellant. Qualified privilege is a defence usually contrived as a defence to untrue publication. An occasion is privileged when the person who makes the documentation has moral or public duty to make it to the person to whom he does make it person who receives it has an interest in hearing it. The twin Conditions must co-exist to make an occasion privileged. Reciprocity of interest between the parties is a sine qua non for a successful plea of the defence, see Iloabachie vs. Iloabachie (supra); Emeagwara vs. Star Printing of Pub. Co. Ltd (2000) 10 NWLR (Pt. 676) 489; Mammam vs. Salaudeen (2005) 18 NWLR (Pt.958) 478; Akomolafe vs. Guardian Press Ltd. (2010) 3 NWLR (Pt. 1181) 338, Peterside vs. Fubora (2013) 6 NWLR (Pt. 1349) 159; Ologe vs. New Africa Holdings Ltd. (2013) 17 NWLR (Pt. 1384) 449; Mainstreet Bank Ltd. vs. Binna (2016) 12 NWLR (Pt.1526) 316, C.S.S. & D.F. Ltd. vs. Schlumberger (Nig.) Ltd (2018)15 NWLR (Pt. 1642)238; Sule vs. Orisajimi (2019)10 NWLR (Pt. 1681) 513.

The only way to destroy a defence of the privilege is to plead and prove malice. It denotes the desire to harm; hatred for, making use of the occasion for some indirect purpose, see Emeagwara v Star Printing & Pub. Co. Ltd. (supra). There are two classes of malice. Technical malice or malice in law which is always presumed in favour of the plaintiff. Express malice or malice in fact, which is never presumed, must be proved by evidence, see Bakare v. Ibrahim (1973) 6 SC 205; Sule v. Orisajimi (2019) 10 NWLR (Pt. 1681)513.
​It will be recalled vividly that a short while ago, I had found that the exhibit L2, the pivot of the first respondent case, epitomises half-truth. The appellant has not furnished this Court with any extenuating circumstances that will stimulate me to disturb that solemn finding reached after due consultation with the law. The vital and viable finding haunts the appellant’s contention of the defence of qualified privilege. The defence is only viable/indefeasible in the absence of falsity of the publication of defamatory material. Put the other way round, it takes to flight on confrontation with untruthful and inaccurate publication. It only thrives in the presence of fair and accurate publication, see Emeagwara vs. Star Printing and Pub. Co. Ltd (Supra); Mainstreet Bank Ltd. vs. Binna (supra). Having regard to this current position of the law, the defence of qualified privilege which appellant flouted about was rendered lame on the footing of the false publication in exhibit L2.
That is not all. As just noted above, the defence of qualified privilege loses steam in the adamant face of malice. In Ekong vs. Otop (2014) 11 NWLR (Pt.1419) 549 at 577, Rhodes- Vivour JSC, incisively and insightfully, proclaimed.
In an action for defamation, if the statement or publication is found to be false, malice is automatically inferred, damages follow, and the hearing of the case comes to an end. The conclusion being that the publication was done for a clearly wrong motive.
Thus, the defence of qualified privilege, which the appellant invented to truncate or abort the case, was demolished by malice which constitutes a serious dents on its potency.

​In projecting the defence of qualified privilege, the appellant took umbrage under the provision of the CBN Guidelines, exhibit N, which are encased between pages, 237-263, volume l, of the record. It insisted that the Guidelines mandated it as a duty to publish the report to the third respondent which had interest to receive it. Nonetheless, there is classic evidence that the appellant did not obtain the consent of the first respondent – the holder/data subject – before dispersing the information in the report, as enjoined by Section 5.4.1 of the CBN Guidelines. Put differently it acted unilaterally without the consensus of the first respondent which did not clear the report for publication. By virtue of Section 5.5 (c) of the CBN Guidelines the second respondent shall “Adopt reasonable precaution to ensure that data provided is authentic, legitimate, reliable, accurate and that it reflects the existing situation of the holder/data subject at any given time”. This provision was unjustifiably neglected as the exhibit L2 is a paradigm of inaccurate report which was distant from the financial position situation of the first respondent. The necessary security and control measures, advocated in Section 5.7 (1), so as to avoid unauthorised/improper use or management of information in the database was jettisoned to the whirlwind. To my mind, ill-will or bad motive can be inferred from the incidents of these provisions that were treated with disdain and contempt. The non-compliance with these provisions, which were friendly to the first respondent or any holder/data subject, overshadows the duty mandated in the selfsame CBN Guidelines. The observance of the highlighted ignored provisions, inter alia, was the forerunner and condition-precedent for the performance of the duty. The lower Court’s finding on the appellant’s exhibition of malice was not a defilement of the law. I give wholesale concurrence to it.

Lastly, the appellant decried the lower Court’s finding on damages against the appellant. The dismal effect of defamation/injurious falsehood on a persona ficta, like the first respondent, was graphically captured in Oduntan vs. General Oil Ltd. (1995) 4 NWLR (Pt. 387) 1 at 14 wherein the Apex Court declared:
A company can sue for defamation. It has reputation and goodwill, which can be protected. An injury to its reputation can lead to loss of its goodwill. The Courts will, in appropriate cases, protect the reputation and goodwill of a company by award of damages and injunction. While it is true that a company, being an artificial person, is incapable of having natural grief and distress, this does not mean the same thing as its reputation in the way of its trade and business.
See, also, C.S.S. & D.F, Ltd vs. Schlumberger (Nig,) Ltd (Supra).

​An irresistible inference drawable from exhibit L2, copied between pages 82-86, volume l, of the record is that the first respondent was a chronic debtor without any scintilla of credit worthiness with bad/lost debt hanging, like the sword of Damocles, over its neck in financial capital market. The DW3, who spoke the mind of the third respondent, described the first respondents credit standing, based on exhibit L2, as disappointment. In virtue of its financial position in the capital market, as showcased in the evidence, an army of investors repose their financial confidence in the first respondent. Such confidence will diminish and banish in the glaring presence of the contents of exhibit L2 which addressed it with the borrowed robe of a bad debtor. The business of the first respondent is, deeply, rooted in fiduciary relationship which is jaundiced in the face of insolvency/bankruptcy, whether real or, phantom. The exhibit L2 has, in no small measure, debased, injured and undermined the financial character and reputation of the first respondent within the hemisphere of the capital market sector in Nigeria and beyond. Individuals, financial institutions or other social organisations will shun having financial transactions with the first respondent. Its goodwill, built over the years; will shrink and sink in ocean of capital market. Indeed: “When wealth is lost, nothing is lost, when health is lost something is lost but when character is lost everything is lost,” see Mirchandani v. Pinheiro (2001) 3 NWLR (Pt 701) 557 at 577 per Galadima, JCA (later JSC). The exhibit L2, without any just cause, assassinated the first respondent’s financial integrity, goodwill and character with the appurtenant business losses/reverses attendant thereto. It has the capacity to cripple its capital market business. The lower Court duly respected the law on its finding on the point. I am in full agreement with it. I will return to this point in the fullness of time in this judgment.

In the spirit of completeness, the lower Court in its judgment, which is sought to be annihilated, dedicated/devoted pages 2378-2422, volume V, of the expansive record to the appraisal of the evidence, both parol and documentary evidence, presented by the contending parties before it. The lower Court, to my mind, carried out a meticulous and thorough analyses of the evidence, viva voce and documentary, proffered by the warring parties after assigning them to their respective pans in the imaginary scale of justice. It attached deserving probative weight to the respective evidence offered by the parties. It found that the first respondent’s pan in the imaginary scale of justice hosted more admissible, credible and conclusive evidence. A piece of evidence is credible when it is worthy of belief, see Agbi v. Ogbeh (2006) 11 NWLR (Pt. 990) 1; Dim v. Enemuo (2009) 10 NWLR (Pt. 1149) 353, Eta v. Dazie (2013) 9 NWLR (Pt. 1359) 248; A. J. Inv. Ltd. v. Afribank (Nig.) Plc. (2013) 9 NWLR (Pt. 1359) 380; Emeka v. Chuba-Ikpeazu (2017) 15 NWLR (Pt. 1589) 345. In the same vein, a piece of evidence is conclusive if it leads to a definite result, .see Nruamah v. Ebuzoeme (2013) 13 NWLR (Pt. 1372) 474. The lower Court found, rightly in my view, that the evidence of the first respondent, based on their qualitative nature, preponderated over those of the appellant’s. The net effect is that the first respondent proved its case. Proof  in law, is a process by which the existence of facts is established to the satisfaction of the Court, see Section 121 of the Evidence Act, 2011; Olufosoye v. Fakorede (1993) 1 NWLR (Pt. 272) 747; Awuse v. Odili (2005) 16 NWLR (Pt. 952) 416; Salau v. State (2019) 16 NWLR (Pt. 1699) 399. (Pt. 1372) 474; APC v. Karfi (2018) 6 NWLR (Pt. 1616) 479; Ojobo v Moro (2019) 17 NWLR (Pt. 1700) 166.

Flowing from the above juridical survey, done in due consultation with the law the lower Court’s ultimate and solemn finding is an immaculate one. It did not transgress the law to render its faultless finding guilty of the accusation of perfunctory evaluation of evidence hurled against it by the appellant. In fact, the allegation is a pseudo- one as well as uncharitable and unsustainable. On this premise, I, with due respect, dishonour the learned appellant’s counsel’s salivating invitation to sacrifice the finding, on the proof of the claim, on the underserved altar of improper evidential evaluation. As a result, I have no choice than to resolve the conflated issues four, five, six and eight against the appellant and in favour of the respondent.

It remains to thrash out issue ten. It probes into the correctness or otherwise of the lower Court’s award of the general damages of N50 Billion in favour of the first respondent. Damages have been defined as: “that pecuniary compensation which law awards to a person for the injury he has sustained by reason of the act or default of another whether that act or default is a breach of contract or tort”, see Iyere v. B.F.F. M Ltd (2008) 18 NWLR (Pt. 1119) 300 at 345, per Muhammad, JSC; Umudje v. SPDCN (1975) 841 SC 155 at 162; Neka B.B.B. Mfg. Co. Ltd. v. A.C.B. Ltd (2004) 2 NWLR (Pt.. 858) 521.

General damages are damages that the law presumes as flowing from the wrong complained of by the victim. They need not be specifically pleaded and proved; see U.B.N. Plc v. Ajabule (supra); Neka B.B.B. Mfg. Co. Ltd. v. A.C.B. Ltd. (supra); Ajigbotosho v. R.C.C. Ltd. (subra); UBN Plc v. Nwankwo (supra); Ibrahim v. Obaje (supra); Onyiorah v. Onyiorah (supra). It is at the discretion of the Court to award general damages, see Cameroon Airlines v. Otutuizu (supra); Ahmed v. CBN (supra); Unity Bank Plc v. Ahmed (2020) 1 NWLR (Pt. 1705) 364. Did the lower Court exercise its discretion properly in awarding the general damages? This involves a little expedition to the large domain of discretionary power of Court.

Discretion signifies: the right or power of a Judex to act according to the dictates of his personal judgment and conscience uninfluenced by the judgment or conscience of other persons, see Suleiman v. C.O.P., Plateau State (2008) 8 NWLR (Pt. 1089) 298; Ajuwa v. S.P.D.C.N. Ltd. (2011) 18 NWLR (Pt. 1279) 797; NJC v. Dakwang (2019) 7 NWLR (Pt. 1672.) 532; Nzekwe v. Anaekwenegbu (2019) 8 NWLR (Pt. 1674) 235; Adeniyi v. Tina George Ltd. (2019) 16 NWLR (Pt. 1699) 560. An exercise of discretion does not grant the Court the unbridled licence to act arbitrarily or capriciously. Contrariwise, it gives it the latitude to act judicially and judiciously, see Shittu v. PAN Ltd. (2018) 15 NWLR (Pt. 1642) 195; APGA v. Oye (2019) 2 NWLR (Pt. 1667) 472; Adeniyi v. Tina George Ind. Ltd. (supra). To act judicially denotes “…discretion bounded by the rules and principles of law, and not arbitrary, capricious, or unrestrained. It is not the indulgence of a judicial whim, but the exercise of judicial judgment, based on facts and guided by law, or the equitable decision of what is just and proper under the circumstances”, seeBabatunde v. P.A.S. & T.A. Ltd. (2007) 13 NWLR (Pt. 1050) 113, at 149 and 150. Per Muhammad, JSC. On the other hand, “Acting judiciously… is said to import the consideration of the interest of both sides and weighing them in order to arrive at a just or fair decision”, see Babatunde v. P.A.S & T.A. Ltd. (supra), at 164, Per Ogbuagu, JSC.
In the wide residence of discretion, previous decisions are not of much relevance. The reason is not far-fetched. The facts and circumstances of two cases are not always on all fours. A Court of law is not, willy-nilly, bound by a precedent in an earlier decision as that will be akin to putting an end to exercise of discretion. It can only use such decisions as guidelines, seeAbacha v. State (2002) 5 NWLR (Pt. 761) 638; Bamaiyi v. State (2001) 8 NWLR (Pt. 715) 270; Suleiman v. C.O.P. Plateau State (supra); Babatunde v. P.A.S. & T.A. Ltd. (supra); Oyegun v. Nzeribe (2010) All FWLR (Pt. 542) 1612; Regt. Trustees, P.C.N. v. Etim (2017) 13 NWLR (Pt. 1581) 1; NJC v. Dakwang (supra); Adeniyi v. Tina George Ind. Ltd. (supra).

An appellate Court is usually loath to interfere with an exercise of discretion save where it is wrongly exercised; tainted with irregularity, irrelevant or extraneous matters or defilement of the law, or in the interest of justice, see Ajuwa v. S.P.D.C.N Ltd (supra); T.S.A. Ind. Ltd. v. Kema Inv. Ltd (2006) 2 NWLR (Pt. 964) 300; Dick v. Our and Oil Co. Ltd. (2018) 14 NWLR (Pt. 1638) 13; FRN v. Yahaya (2019) 7 NWLR (Pt. 1670) 85; Nzekwe v. Anaekwenegbu (supra); Takoh v. MTN (Nig) Comm. Ltd. (2019) 10 NWLR (Pt. 1679) 23; Ogunpehin v. Nucleus Venture (2019) 16 NWLR (pt. 1699) 533.

​In due obeisance to the law, I have again visited the record, the lifeblood of every appeal, in the domain of the lower Court’s judgment sought to be impugned by the appellant. At pages 2420 and 2421 volume V, of the huge record, the lower Court found:
I agree with Claimants Counsel that this disparagement of the FHC Judgment Exhibit G at the instance of 1st Defendant in concert with the 2nd Defendant resulted in very substantial pecuniary and business losses to the Claimant such as loss of business opportunity to borrow the N250 Million or other loan facilities from the 3rd Party; lack of free access to new Banks to do its business from other Banks and Financial Institutions in Nigeria; loss of the N250 million Lekki Property and its anticipated returns; loss of integrity and standing to do new and increased business with existing and potential local and offshore Capital Market clients of the Claimant since Exhibit L2 Credit Report is in the nature of “a cancerous carcinogen” to Claimant’s business, trading and corporate reputation and creditworthiness, and finally in the face of Claimant’s SEC Exhibits B and C status a Capital Market Issuing House and Broker, a marketing of the Claimant as a credible licensed Capital Market Institution in the Nigerian and Global Banking and Financial Community. For 4 years plus this is the injurious stain and damage deliberately inflicted on the Claimant by both Defendants who cannot pretend any ignorance of the enormous negative financial consequences of their continued false disparagement through Exhibit L2 of Claimant’s trade and business and financial status and standing.

This extract exposes/discloses the paramount factors which the lower Court took into consideration in its assessment of the damages. It is decipherable therefrom that “loss of business opportunity to borrow the N250 Million or other loan facilities from the 3rd party” and “loss of N250 million Lekki property and its anticipated returns” inter alia, greatly influenced the lower Court in making the award of the whopping sum of N50 Billion to the first respondent. I have, in due consonance with the dictate of the law, burrowed/browsed through the entire gamut of the evidence, viva voce and documentary, furnished by the warring parties before the lower Court. Incidentally, I am unable to detect, even the bird’s eye view of appellate Court, where the first respondent proffered evidence in substantiation of those two considerations. In essence, the first respondent starved the Court of the necessary evidence which were desiderata for reliance on those factors. In other words, those factors were not supported, nay, reinforced by any evidence: parol or documentary. It is outside the bounden duty of the Court to hunt for evidence for a party.

It is an elementary law that award of damages does not inure to a party as a matter of routine/course, but on sound legal principles flowing from evidence. An award of damages cannot be predicated on anticipated/imaginary profits which are not concretised by evidence. That will amount to dishing out a windfall to an undeserved party. Indeed, speculative profits, which are dependent on uncertain future activity with changing market situations or chancy business opportunities/ventures or unproven enterprise, are not amenable to recovery as damages from a Court.

The duty of a Court is to accord to a party his proven claim. A Court of law is not a santa claus that doles ex gratia awards to recipients. The lower Court, with due respect, fractured the lower Court when it factored those considerations as templates to assess the award. In a word, it did not act judicially in that regard. It was paragon of injudicious exercise.

It cannot be gainsaid that any injudicious exercise irritates the law which stigmatises it as a perverse finding. A verdict of Court is perverse when it runs counter to the pleadings and evidence before it, a Court takes into account matters it ought not to take into consideration, a Court shuts its eyes to the evidence, a Court takes irrelevant matters into account or it has occasioned a miscarriage of justice, see Udengwu v. Uzuegbu (2003) 13 NWLR (Pt. 836) 136; Nnorodim v. Ezeani (1995) 2 NWLR (Pt. 378) 448; Lagga v. Sarhuna (2008) 16 NWLR (Pt. 1114) 427; Onyekwelu v. Elf Pet (Nig.) Ltd. (2009) 5 BWKR (Pt. 1133) 181; Momoh v. Umoru (2011) 15 NWLR (Pt. 1270) 217, Ihunwo v. Ihunwo (2013) 8 NWLR (Pt. 1357) 550; Olaniyan v. Fatoki (2013) 17 NWLR (Pt. 1384) 477; Udom v. Umana (No.1) (2016) 12 NWLR (Pt. 1526) 179; Adeokin Records v. M.C.S.N. (Ltd)/GTE) (supra); Mamonu v. Dikat (2019) 7 NWLR (Pt 1672) 495; MTN (Nig.) Comm. Ltd. v. Corporate Comm. Inv. Ltd. (2019) 9 NWLR (Pt. 1678) 427; Offodile v. Offodile (2019) 16 NWLR (Pt. 1698) 189; Courtney Ltd. v. A-G, Fed. (2019) 10 NWLR (Pt. 1679) 112; Fredrick v. Ibekwe (2019) 17 NWLR (Pt. 1702) 467; Uzodinma v. lhedioha (2020) 5 NWLR (Pt. 1718) 529.

By relying on factors not covered by evidence, the lower Court’s judicial act was antithetical to evidence. Those factors, as it were, were orphans denied of any substratum, to perch and command any legality/validity. In the absence of evidence, the lower Court imported extraneous matters in the appraisal of the damages and, by extension, into its judgment which soiled it partly, It utiiised factors outside the evidence presented before it. The particular act constituted a failure of justice which, in turn, inflicted miscarriage of justice on the appellant. In effect, the particular act was/is trapped in the intractable web of perversity and miscarriage of justice to fetch the intervention of this Court.

The appellant’s learned senior counsel had submitted that it had shown reasons for this Court to interfere with the award of damages. An appellate Court does not usually interfere with award of damages unless: (a) the trial Court acted under a mistake of law; or (b) where the trial Court acted in disregard of some principles of law: or (c) where the trial Court acted under misapprehension of facts; or (d) where it has taken into account irrelevant matters or failed to take into account relevant matters; or (e) where injustice would result if the appellate Court does not interfere; or (f) where the amount awarded is ridiculously low or high that it must have been a wholly erroneous estimate of the damages, see SPDCN v. Tiebo VII (supra); Cameroon Airlines v. Otutuizu (supra); British Airways v. Atoyebi (2014) 13 NWLR (Pt. 1424) 253; Agu v. General Oil Ltd. (2015) 17 NWLR (Pt. 1488) 327.

My noble Lords, the appellant implored this Court to intervene in the award on the ground that it satisfied these enumerated circumstances. The particular act, consideration of factors without evidence, is fraught with lots of caustic consequences on the quantum of the award. It demonstrates that the lower Court did not partly pay due fidelity to the law as regards award of damages in the case. It indicates partly that the lower Court offended the law and disregarded/ignored the guiding principles governing award of damages. In that regard only, it acted under the mistake of law. It was an unwarranted invitation to foreign matters in the assessment of damages. On the magnitude of the award, the first respondent urged this Court to follow its decision in DHL Int’l Nig. Ltd vs. Eze-Uzoamaka (2020)16 NWLR (Pt. 1751) 445. The sum involved in that case was just N10 Million which is a miniscule/infinitesimal sum in the presence of N50 Billion award in this case. The difference in sum distinguishes the awards in the two cases. Facts are the arrow head of the law which determine the destiny of cases, I refuse to kowtow to that decision on account of sum differential. The sum of N50 Billion remains a mountainous sum that will not vaporize in the presence of the existential galloping inflation and exponential depreciation of the Nigerian Naira currency. The award of N50 Billion, by all standard, is a staggering sum that is ridiculously high and snowballs into a wholly erroneous estimate of the damages attributable to the malicious falsehood in exhibit L2. The cumulative effect is that injustice will dethrone justice from its temple if this Court fails to interfere with the humongous award. For fear of the wrath for the law, I will not plant injustices in lieu of justice in the case. The sum of N50 Billion will be slashed to the sum which this Court considers as sufficient to recompense, repair and atone for the battered financial reputation of the first respondent by the malicious/injurious falsehood, jointly published by the appellant and the second respondent against the first respondent, in its Credit Status Report (CSR), exhibit L2. In the light of this tour d’horizon on award of damages, done in keeping with the law, this issue favours both parties. I, therefore, partly resolve the issue ten in favour of the appellant and the first respondent and vice versa.

​On the whole, having resolved the issues 1 – 9 and 11 against the appellant and issue ten partly in its favour, the fortune of the appeal is obvious. It is partly imbued with merit and succeeds in part. Consequently, I allow the appeal in part. Accordingly, l, reduce the sum of N50 Billion, awarded by the lower Court, to the sum of N5 Billion, as general damages in favour of the first respondent against the appellant and the second respondent jointly and severally. For the avoidance of doubt, the sum of N5 Billion damages remains the award in this appeal and in Appeal No. CA/L/1093A/2017. The parties shall bear the costs they expended in the prosecution and defence of the partially-successful appeal.

FATIMA OMORO AKINBAMI, J.C.A.: I have read in draft the lead judgment of my learned brother, Obande Festus Ogbuinya, JCA, where the facts and issues in contention have been set out.
I am in agreement with the reasoning and conclusion and adopt the judgment as mine. I have nothing extra to add.

FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the judgment just delivered by my learned Brother, OBANDE FESTUS OGBUINYA, JCA and I am in agreement with the reasoning and conclusions in partly allowing the Appeal, which is partly imbued with merit. I equally abide by the consequential orders made thereto.

 

Appearances:

O. Ajayi, SAN, with him, O. Opasanya, SAN and A. Aderogba, Esq. For Appellant(s)

Chief F. O. Fagbohungbe, SAN., with him, Abayomi Adeniran, Esq. – for first Respondent
Yusuf Ali, SAN, with him, Yakubu Dauda, Esq. – for second Respondent
Adesoji Ojerinde, Esq. – for third Respondent For Respondent(s)