Peter Okoro Osakwe V. Union Bank Of Nig. Plc (2009)
LawGlobal-Hub Lead Judgment Report
GEORGE OLADEINDE SHOREMI J.C.A.
This is an appeal by the Appellant who was the Plaintiff in the lower court against the judgment of Ikponwen Judge sitting at High Court of Justice Ekpoma and delivered on 22/1 0/03 wherein he dismissed the Appellant’s case in its entirety and awarded cost to the Respondent. The facts of the case briefly stated are as follows:
The Plaintiff, now Appellant, is a regular customer of the Defendant/Respondent where he maintains three accounts viz – a Current Account, a saving Account and a loan Account. On 11/11/98, Plaintiff upon an application was granted an Agriculture Loan of N80.000.00 (Eighty Thousand Naira) with the terms well spelt out in Exhibit ‘D’. The loan was to be defrayed on or before 30/10/99.
Plaintiff asserted he did not breach any of the terms of the loan facility but suddenly on 8/4/99, the Defendant/Respondent unilaterally liquidated the loan by withdrawing the sum of N66,000.0 outstanding from the Plaintiff’s saving account. This was done without the Plaintiff/Appellant’s knowledge or consent and in breach of the subsisting contract between the two parties. Yet the Defendant/Respondent continued to deduct interest on the liquidated loan.
On 11/10/99, Plaintiff/Appellant claimed he made a case lodgment of N50,000.00 (Fifty Thousand Naira) into his savings account, but the account was not credited until 10/11/99.
On 31/8/200, Plaintiff/Appellant was again granted Agriculture loan of N100,000.00. On 5/12/2000, Plaintiff/Appellant liquidated the loan and subsequently asked for a comprehensive statement of his account which the Defendant/Respondent did not oblige him; hence he wrote the Branch Manager of Iruekpen and the Head Office in Benin City. Plaintiff/Appellant did not get any response still, so on 9/4/2001 he reported the matter to the police.
Defendant/Respondent produced a statement of account and published it to the police which portrayed the Plaintiff/Appellant as a debtor. Consequently, Plaintiff/Appellant instituted this action.
The Appellant’s case was fought on his further and better amended statement of claim dated 2/10/02 and his claim is stated therein as follows –
Plaintiff claims from the defendant as follows:
(a) The sum of N1000,000.00 (One Hundred Million Naira) Being general damages against the defendant for negligent handling of the plaintiff’s various accounts with the defendant particularly the savings and Agric/loan Account with the defendant’s branch at Iruekpen Ekpoma, within the jurisdiction of this Honourable court between 1999 and 2001.
(b) The sum of N1000,000.00 (One hundred Naira) only being General damages for libelous defamation in that sometime in 2001, the defendant unlawfully represented to the commissioner of police, Edo State by way of false statements of plaintiff’s Agric/loan Account No. 3191187590 that the plaintiff was a debtor liable to pay interest to defendant in the said Account as at 30-4-99 and 27-5-99 even though plaintiff has settled all indebtedness to the defendant in the said Account as at 8-4-99, reason whereof plaintiff has suffered damaged and has been in red his credit, character and reputation and has been held in low esteem and been shunned and avoided as a common debtor by reasonable and right thinking members of the society and the police.
The Respondent also filed an amended state of defence upon which the case was tried in the High Court. After evidence were taken on both sides the learned trial judge dismissed the Appellant’s case in the following manner and I quote for ease of reference.
“I have given due consideration to all the facts adduced by the parties and the submissions of both Counsel. From the above facts, taking the claim of N100,000.000 for damages for defamation first, I find that the plaintiff bases his claim on the fact that the defendant sent his statement of account to the Commissioner of Police, Edo State showing that he was indebted to the defendant which he states is not true. It is trite law that a person commits the tort of defamation when he or she publishes to a third person words containing an untrue imputation against the reputation of another. See Ciroma v. Alli (1999) 2 NWLR (PT 590) 317. In the case of F.M.B. v. Adesokan (2003) 3 NWLR 19 at 29. Onnoghen JCA.,(as he then was stated inter alia as follows:-
“By defamation we mean any imputation which may tend to lower the plaintiff in the estimation or right thinking members of the society generally and expose him to hatred, contempt or ridicule. An imputation may be defamatory whether or not it is believed by those to whom it is published. In the case of libel and slander actionable per se, the publication of the matter containing defamatory imputation is actionable without proof of damage.”
The plaintiff in any given case must prove per force SIX coterminous ingredients viz:-
- Publication of the offending words
- That the words complained of relate and refer to the plaintiff
- That the words are defamatory of plaintiff.
- Publication to third party
- Falsity of the words complained
- That there was no justification for the publication of the offending words.
In the light of the above it is important to note that it was the plaintiff who complained to the police and in the course of police investigating the defendant of fraud alleged by plaintiff, the defendant submitted that plaintiff’s statement of account. Even if it is believed that there was publication of defamatory words by the defendant, it cannot be stated that the plaintiff proved that there was no justification when plaintiff himself reported fraud in respect of his account with the defendant. There is no way the police would have been investigated plaintiff’s complaint to it without looking into the statement of account of plaintiff. Moreover, I do not see how, neither is there any evidence adduced by plaintiff on how he has been ridiculed or brought to contempt by right thinking members of the society as a result of this implication if there was any at all. It is my firm view that the claim for N100,000.00 damages for defamation is grossly misconceived and not proved as required by law. I therefore without any hesitation whatsoever dismiss the claim.
On the other claim for negligent handling by defendant of plaintiff’s various account between 1999 – 2001. The plaintiff did not give the particulars of negligence in his pleadings. I do not consider paragraph 5(d) as good enough to sustain the claim for negligence. It states as follows: – “On 30/4/99 and 27/5/99, the defendant curiously, egligently and or unlawfully charged interest on plaintiff’s agric loan account when plaintiff had liquidated the agric loan and interest as at 8/4/99 in line with the tenor of defendant’s approval letter dated 11/11/98.”
It is now known that plaintiff vide Exhibit ‘G1’ applied for another loan which apparently was granted. He only liquidated the loan by letter of 5/12/200. This knocks but the bottom of the arguments in paragraph 5(d) of plaintiff s amended statement of claim.
In the circumstance I dismiss the plaintiffs claim in paragraph 10(a)”.
It is against this judgment that the Appellant filed his notice and grounds of appeal dated 19/12/03. The grounds of appeal without particulars are quoted hereunder –
(A) The decision is perverse
(B) The learned trial Judge erred in law in dismissing the plaintiff’s claim for defamation when the court failed to make inference of defamation from the surrounding circumstances and when the vital elements of defamation as outlined by the learned trial Judge had been proved in the printed evidence.
(C) The learned trial Judge erred in law in dismissing plaintiffs claim for negligent handling of plaintiff’s account(s) on the ground of want of particulars when the ingredients and or particulars of negligence were duly pleaded and established in the printed evidence.
In line with the rules of the court parties filed and exchanged briefs of argument. The Appellant’s brief was filed on 12/8/04 while the Respondent’s brief was deemed filed on 1/3/07.
When the case came up for hearing on 12/5/09 Counsel to both parties adopted their respective briefs and relied on them as their arguments in this appeal.
The learned counsel to the appellant urged this court to allow the appeal while the Respondent Counsel urged the court to dismiss the appeal.
The Appellant distilled of issues from his grounds of appeal therein.
ISSUE 1
Whether it was right for the learned trial Judges to hold that the particular of negligence were not furnished in the face of overwhelming evidence adduced by the Plaintiff at the trial (Grounds 3A and C)
ISSUS 2
Whether it was right for the learned trial Judge to hold that the publication of the defamatory words was justified even though it was false and actuated by malice (Ground 3B).
The Respondent also distilled two issues as follows:
(1) Whether the Appellant suffered any damage in the manner at which the Respondent operated the three accounts of the Appellant
(2) Whether the Appellant was defamed during the operation of the said account.
I will deal with this appeal on the two issues stated by the Appellant.
On Issue 1 – The learned Counsel to the Appellant argued that the Respondent had defaulted in its fiduciary duty to the Appellant to exercise reasonable case and skill with regards to the affairs of the Appellant and this is borne out by various and multifarious acts of negligence proved by evidence and urged on the trial court. He relied on the case of AGBENOL V. UNION BANK OF NIGERIA (2003) 23 WRN 1 PP 6 RT 9. He argued that a Banker can not engage in arbitrary transfer and combination of accounts where there is a binding agreement. He argued that the Appellant was not allowed to utilize loan granted to him. He cited the case of UNIVERSAL VULCANISING (NIG) LTD V. I.U.T.T. C (1992) 9 NWLR (Pt 266) P.338 PP 393 where the Supreme Court held that Breach of contract is actionable per se.
He argued that the Appellant pleaded the facts of negligence in paragraphs 5(a), 5(d) and 9 of the Plaintiff amended statement of claim and page 44 of the Records and they were sufficient facts necessary to establish negligence of the Respondent. Details can be given in evidence citing Order 22 Rule 4(1) of the Bendel State High Court Civil Procedure Rules 1988 applicable to Edo State. He argued that the judgment of the trial judge was perverse.
In the light of the above he urged the court to resolve issue 1 in favour of Appellant. The Respondent on this issue submitted that particulars of negligence must be pleaded citing the case of KOYA V. U.B.A. (1997) 46 LRCN Page 1 at 5 where the Supreme Court held that –
“A Plaintiff as a matter of law is required, in an action on negligence, to state or give particulars of negligence pleaded in the particulars it is not sufficient for Appellant to make a blanket allegation in a claim on negligence without giving full particulars of the items of negligence relied on as well as the duty of care owed to him by the Defendant.”
See ANYAH V. IMO CONCORDE HOTELS (2002) 103 LRCN 2452 AT 2455.
The above are the arguments of counsel on related Issue 1 as formulated by them. It is of note that the trial Judge at Page 73 of the Record held as follows:
On the other claim for negligence handling of Plaintiff’s Account by the Defendant between 1999-2001, the plaintiff did not give the particulars of negligence in his pleadings.
I do not consider paragraph 5(d) as good enough to justify the claim for negligence. It is trite law that mere averment in pleadings prove nothing if not supported by evidence unless the averments are admitted by the opposite side. When issue are joined they can only be resolved by reference to the evidence called by both parties. See NKUMA V. ODIH (2006) 3 SCNJ Page 31 at 44. It is not sufficient for a Plaintiff to make a blanket allegation against a Defendant without giving full particulars of the items of negligence relied on as well as the duty of care owed him by the Defendant.
See ANYAH V. IMO CONCORDE HOTELS (2002) 103 LRCN 2452 AT 2455.
It is also trite law that what amounts to negligence is a question of fact and not law and each case must be decided in the light of its own fact. See NGILARI V. MOTHER CAT LTD 1999 13 NWLR (PT 636) 626.
In an action for negligence the plaintiff must show –
(a) The Defendant owes him a duty of care
(b) The Defendant acted in breach of that duty and
(c) That he suffered resultant damage.
See HANSEATIC INT. LTD V. MATIN USANG (2002) 13 NWLR (PT 784) Page 376 per Muhammed JCA Page 71-77 and INCORPORATED TRUSTEES MOUNTAIN OF FIRE AND MIRACLES V. AUNTY MARY SCHOOLS LTD (2007) 42 WRN 59.
I hold the view that the learned trial Judge was right in his decision on the point. Therefore Issue I is resolved against the appellant and in favour of the Respondent.
On Issue 2 – The Appellant complained that the statement of account was sent to the police. He argued that substantial damage must be awarded without proof of actual loss because of the damage deemed to be necessarily done to their credit and or reputation in business by the unjustified action of the banker.
He argued that justification or truth through a defence to defamation requires strict proof. He argued that the letter of Respondent suggested to the police that the Appellant was a chronic debtor who was still paying interest on his loan as at 30/6/99 even though he had liquidated the said loan on 8/4/99. He urged the court to resolve issue 2 in favour of the Appellant. The Respondent on his own argued that the words complained of are not stated citing the case of YESUFU V. GBADAMUSI (1993) 6 NWLR Pt 299) 363 where the Court of Appeal held that in an action for Defamation the words complained of must be alleged and proved. He therefore urged this court to resolve the issue in favour of the Respondent. It is of note that it was the Appellant who invited the police to obtain his statement of account alleging fraud.
In all civil matters the onus of proof is on the party who asserts See ARASE V. ARASE (1981) 5 SC 33.
The publication of the document complained of was induced by the Appellant himself. The Respondent had on obligation to release such document to them to aid their investigations.
One wonders when the police is now made an arbitrator between a banker and its customer. From the evidence adduced in court the Appellant and the Respondent were in good relationship.
However, the Plaintiff has not satisfied the court on what he must prove in an action for defamation as stated in the case of NEW BREED ORG. LTD V. ERHOMOSALE J.N.S where the Supreme Court stated thus I quote –
“The plaintiff must in the first place strictly set out and prove the words complained of as in an action for defamation. He must prove that they are false and he must prove that they are malicious. There may be something analogous to claim of privilege on the defendant’s part; he may say, for example that he only slandered the plaintiffs title in defence of his own. In such a case it will be for the plaintiff to prove lack of good faith. Even, however should there be no duty or interest on the defendant’s part; the matter will not necessarily be concluded against him. Malice must still be found as a fact. That he had no good ground or reasonable occasion for the publication in question may be strong evidence of that fact, but it is nothing more. And mere knowledge of the falsehood of the statement at the time of uttering it, though strong evidence of actual malice, is not conclusive. Finally except in cases within section 3 of the Defamation Act 1952 actual damage must be proved. {Clerk and Lindsell on Torts 4th edition at paragraph 1859 referred to.} Per Mukhtar, JSC fPp.34] paras. F-B”.
There is no evidence to entitle the Appellant to judgment. The learned trial Judge had no option but to rely on the evidence provided before it. Once there is no cogent and credible evidence in favour of the Appellant he was right to have dismissed the case.
I therefore resolve Issue 2 against the Appellant and in favour of the Respondent. The Appeal therefore fails and it is dismissed with N30,000 cost against the Appellant.
Other Citations: (2009)LCN/3400(CA)
