Unity Bank PLC V. Mr. Akinlabi S. Oluwafemi (2006)

LawGlobal-Hub Lead Judgment Report

STANLEY SHENKO ALAGOA J.C.A.

At the High Court of Justice, Akure Ondo State of Nigeria, the Respondent as Plaintiff took out a writ of summons against the Appellant as Defendant claiming the following which are replicated in paragraph 44 of his statement of claim dated the 14th January 2003 and filed same day-

(1) A declaration that the letter reference No. P/CON/2359 dated May 9, 2002 addressed to Plaintiff by defendant titled “Re: Attempted fraud of N68 million through Electronic Transfer:- Account 206, Akure Branch” which letter purportedly terminated Plaintiff’s appointment and removed him from the employment of defendant is wrongful, irregular, unconstitutional and of no effect whatsoever.

(2) An ORDER directing the Defendant to pay to the Plaintiff all salaries that he may be entitled to with all terminal benefits including gratuity and pensions as contained in the Managing Director’s circular Ref MD & CE/CON.20/09.99 of 16th September 1999.

3 months salary at N14,678 per month – N44,034.00

gratuity of 190% of terminal basic salary – N334,658.40

2002 Leave Allowance – N21,163.32

TOTAL – = N399,828.72

(3) Payment of monthly salary and Allowance by the Defendant to the Plaintiff with effect from May 2002 till such a time when the suit shall finally be disposed of at the rate of N46,916.68 per month.

(4) N11.5 million as damages for defamation published of and concerning the Plaintiff by the letter of the Defendant dated May 9, 2002 with reference No. P/CON/2359 to the effect that RE: ATTEMPTED FRAUD OF N68 MILLION THROUGH ELECTRONIC TRANSFER S-ACCOUNT 206 -AKURE BRANCH” as follows:

This is to inform you that the Management has completed investigation on the above fraudulent case and level of your involvement was established.

In view of this, it is regretted that you have abused the confidence reposed in you and the Management is therefore no longer interested in your services hence your appointment is hereby TERMINATED with effect from the date of this letter.

You are expected to pay en- bloc your total loan commitments or submit an acceptable repayment proposal to your Branch Manager, failing which we will compel the Management to institute legal action against you to recover same. You are also to surrender all the Bank’s property entrusted to you including your staff identity card to your Branch Manager.

Yours faithfully,

PRO. DEPUTY GENERAL MANAGER (STAFF)”

(5) AN ORDER directing the Defendant to tender and Publish an unreserved apology to the Plaintiff.

Briefly the facts culminating in this appeal are that the Respondent was an employee of the Appellant at its branch office at Akure. The Respondent, then Plaintiff commenced an action against the Appellant, then Defendant at the Akure High Court for alleged wrongful termination of his appointment with the Appellant Bank and claimed the sum of N1.5 million as damages for defamation. He also claimed payment of salary in lieu of notice gratuity and pension. The Akure High Court on the 31st January 2005 gave judgment in the sum of N1.5 million as damages for defamation in favour of the Respondent against the Appellant. The court also granted the relief of the Respondent for the payment of his gratuity and pension.

Pleadings were subsequently filed and exchanged by the parties and the matter went on to full trial during which a number of exhibits were admitted evidence of witnesses and the addresses of counsel on both sides taken. In his judgment in the said Suit No. AK/23/2003 delivered on the 31st January 2005 the Akure High Court presided over by S.A. SIDIQ J. held as follows-

“In all, this action hereby partly succeeds and the judgment of this Honourable court is hereby entered as follows –

1. The Plaintiffs (PW3) claim as contained in Paragraph 44(1) and 44(3) fail and are hereby dismissed.
2. An order of this Honourable court is hereby granted directing the defendant to pay the Plaintiff all his terminal benefits including gratuity and pension as contained in the MD circular Ref: MD & CE/CON.20/09.99 of 16 September 1999 (Exhibit PW 13) as follows:

(i) One month salary in lieu of Notice – N14,678.00

(ii)gratuity of 190% of terminal basic salary N334,658.40

(iii) Leave Allowance 2002 N 21,136.32

Total N370,472.72

(iv) Pension of 64% of terminal basic salary payable forthwith. N9,393.92

General damages of the sum of N1.5 million is hereby awarded in favour of the plaintiff against the defendant being damages for defamation (libel) published of and concerning the plaintiff by the letter of the defendant dated May 9, 2002 with reference NO.P/CON/799.

4. The defendant is hereby ordered to tender and publish an unreserved apology to the plaintiff.

Cost of N5,000.00 is hereby awarded in favour of the Plaintiff.

Dissatisfied with this judgment the Appellant filed Notice of Appeal which can be found on pages 70-72 of the Records of Appeal and is reproduced hereunder:

IN THE COURT OF APPEAL

HOLDEN AT BENIN

BETWEEN

SUIT NO. AK/23/2003

APPEAL NO

BANK OF THE NORTH LTD APPELLANT

AND

MR. AKINLABI S. OLUWAFEMI RESPONDENT

NOTICE OF APPEAL

TAKE NOTICE that the defendant/appellant being dissatisfied with the decision more particularly stated in paragraph 2 of the Notice of Appeal contained in the judgment of his Lordship Justice Sadiq of High Court NO. 8 Akure in Suit No. AK/23/2003 dated January 31st 2005 do hereby appeal to the Court of Appeal, Benin upon the ground set out in paragraph 3 and will at the hearing of the appeal seek the reliefs set out in paragraph 4.

AND the appellant further states that the names and addresses of the person directly affected by the appeal are those set out in paragraph 5.

2. Part of the Decision of the Lower Court Complained of:

The whole Decision

3. GROUNDS OF APPEAL
4. The learned trial Judge erred in law by holding that the defendant cannot exercise the right of set-off against the plaintiff/respondent in respect of the outstanding loan against the plaintiff/respondent in the ground that the set-off and its particulars were not pleaded when:

(1) By paragraph 7 of the Statement of defence it was expressly pleaded that the plaintiff has outstanding balance to pay to the defendant/appellant after the deduction of his various loans from his entitlement.

(ii) The plaintiff/respondent did not request for further and better particulars of paragraph 7 of the Statement of defence.

(iii) By the rules of pleading material fact is to be pleaded and not evidence to be adduced in support of that material fact.

2. The learned trial Judge erred in law by holding that the plaintiff/respondent has proved all the ingredients of the defendants of the defamation and that the admission of DW1 under cross examination that the Manager of the appellant read the defamatory letter before it was handed over to the plaintiff is evidence in proof of publication when:

(i) There is no evidence on record from the Manager of the appellant of his opinion about the plaintiff or that he read the defamatory letter and evidence of DW1 as to what the Manager did is hearsay evidence under Section 77 of the Evidence Act.

(ii) There is no dispute that the defamatory letter was never published to any member of the public and there is no evidence on record that the plaintiff’s image has been lowered in the estimation of the right thinking members of the community.

(iii) The defendant is a corporate body and can only act through its human agent and there cannot be publication of the defamatory letter to the defendant’s staff when the letter was written by the defendant.

3. The learned trial Judge erred in law by holding that the plaintiff is entitled to general damages of N1.5 million and that general damages need not be strictly pleaded and proved when:

(i) There is no credible evidence on record that the plaintiff sustained any financial loss as a result of the defamatory letter and the award of N1.5million is outrageous.

(ii) Claim for General Damages must be averred and there must be evidence on record to sustain it.

(iii) There is no claim for general damages or evidence in support of it.

(iv) There is no claim for any item of damages in the Pleading.

(v) General damages must still be averred in the pleading.

4. The learned trial Judge erred in law by awarding the sum of N1.5 million to the plaintiff/respondent as general damages when there is no evidence on record on which the assessment of damages was based.

PARTICULARS OF ERROR

(i) There is no evidence on record from the plaintiff to establish any financial loss and on which the court can base its assessment of general damages.

(ii) The award of the sum of N1.5 million to the respondent by the court is in violation of the legal formular for the assessment of damages

5. The learned trial Judge erred in law by awarding the sum of N 1.5million to the plaintiff as general damages when the plaintiff has been adequately compensated by the order of the court that the plaintiff/respondent should be paid his gratuity and entitlements.

PARTICULARS OF ERROR

(i) The award of N1.5 million to the plaintiff as damages is against the principle of double compensation.

(ii) The plaintiff by the order of the court that he should be paid his gratuity and entitlement has been put into the position he would have been if the tort of defamation has not been committed.

(iii) The issue of double compensation was raised before the learned trial Judge and this was not disputed by the respondent but finding was not made on it.

6. The learned trial Judge erred in law by holding that the appellant did not lead evidence in support of certain averments in the statement of defence when all the averments in the statement of defence are supported by the evidence of DW1 and various exhibits’ that were tendered in evidence and the plaintiff did not raise the issue in court that the defendant has abandoned the averments in its pleading.

PARTICULARS OF ERROR

(i) The averments in the pleading of the appellant were established by evidence of DW1 and various exhibits that were tendered in evidence in the suit.

7. The learned trial Judge erred in law by basing his award of general damages in the sum of N1.5 million in favour of the plaintiff on the ground of his high moral and standing of the plaintiff in the Society when the issue and standing of the plaintiff in the society did not feature in the address of counsel and evidence of the plaintiff.

PARTICULARS OF ERROR

(i) The issue of standing of the plaintiff and high moral of the plaintiff in the society was raised sumotu by the court without any counsel’s address on it.

(ii) The court is precluded from raising issue sumotu even on examination of exhibits out of the court when the issues contained therein have not been canvassed or tested in the court.

(iii) No witness gave evidence in court on the standing and high moral of the plaintiff.

(iv) The finding of the learned trial Judge that the Manager of the appellant pleaded to the appellant on behalf of the respondent indicates clearly that the defamatory letter did not have any impact on the Manager on his personal opinion about the respondent.

8. The learned trial Judge erred in law by holding that the plaintiff is entitled to the payment of gratuity and pension when the appointment of the plaintiff has been effectively terminated and the collection Agreement that he relied on is irrelevant as it was not incorporated into the contract of employment and there is no relief for the conversion of the termination into retirement.

PARTICULARS OF ERROR

(i) The plaintiff is only entitled to the payment of one month salary on the termination of his employment

(ii) The Collective Agreement was not incorporated into the contract of employment.

(iii) There is no relief for the conversion of the termination into retirement.

9 The learned trial Judge erred in law by awarding the sum of N5,000.00 to the respondent as cost when the respondent did not incur that amount in prosecuting the case.

PARTICUALRS OF ERROR

Cost is not to be punitive and the cost of N5, 000.00 is punitive.

4. Relief Sought from the Court of Appeal

An order dismissing the claim of the plaintiff and setting aside the judgment of the court below.

Person directly affected by the Appeal:

Name of Plaintiff

Akinlabi S. Oluwafemi

Address:

C/o His Solicitor

C/o Wale Omotosho

Confidence Chambers,Alagbaka Junction, Akure.

Defendant

Bank of the North Ltd.

Address:

Oluwole Aluko & Co

C/o Manager, Bank of the North

No. 15 Adesida Road,Akure.

PREPARED BY:

(SGD)

OLUWOLE ALUKO & CO

189b ADEKUNLE FAJUYI ROAD

ADAMASINGBA

IBADAN.

The Respondent Cross appealed and the Cross Appeal is incorporated in the Respondent’s Brief of argument filed on 15th Dec 2005. This appeal came up for hearing on the 9th October 2006. Just before then, Oluwole Aluko Esq counsel for the Appellant moved a motion dated the 27th July 2006 and filed on the 8th August 2006 for an order of court to substitute Unity Bank Plc for the Appellant/Applicant i.e Bank of the North Ltd, the reason as deposed to in paragraph 3 of the affidavit of the said application being that as a result of the merger of the Appellant Bank with some banks on consolidation, the Appellant Bank is now known as Unity Bank Plc.

Counsel for the Respondent F. Omotosho esq did not oppose the application and Unity Bank was accordingly substituted as Appellant by an order of this court. With respect to the appeal proper, O. Aluko esq adopted the Appellant’s Brief of argument dated the 14th November 2005 and filed on the 16th November 2005. as well as the Appellant’s Reply Brief and Reply to the Respondent’s Cross Appeal dated 5th January 2006 and filed on the 6th January 2006. He cited a number of additional authorities and urged this court to allow the appeal, dismiss the Cross Appeal and strike out the Notice of preliminary objection.

F. Omotosho esq referred to the Respondent’s Brief of argument dated 14th December 2005 and filed on the 15th December 2005. He relied on and adopted the said Brief of argument. He also referred to the Respondent’s Notice of Cross Appeal dated 27th April 2005 and filed on the 29th April 2005.

The Cross Appellant’s Brief of argument he said is filed along with the Respondent’s Brief of argument on page 19 of the said brief of argument. The Notice of preliminary objection is also contained on pages 5-9 of the Respondent’s Brief. He relied on the argument in the said Notice of preliminary objection. He also referred to a separate Notice of preliminary objection dated the 7th February 2006 and filed on the 10th February 2006 apart from the one incorporated in the Respondent’s Brief of argument. He urged this court to dismiss the appeal and uphold the Cross Appeal. I shall now proceed firstly to deal with the Notice of preliminary objection. As earlier stated this is contained on pages 5-9 of the Respondent’s Brief of argument. The Respondent therein contended that by virtue of order 1 Rule 2 of the Court of Appeal Rules 2002, Sections 12 and 30 of the Court of Appeal Act Cap 11 Laws of the Federation of Nigeria 2004 a person who can appeal from the decision of the court below must certainly be a natural person or person with corporate personality or a legal practitioner. Counsel referred to Sections 2(1) and 24 of the Legal Practitioners Act Cap 11 Laws of the Federation of Nigeria 2004 which defines person entitled in accordance with the provisions of this Act to practise as a Barrister or as Barrister and Solicitor either generally or for the purposes of any particular office or proceeding. It was submitted for the Respondent that a cursory look at the Notice of Appeal filed in this appeal will clearly show that it is the law firm of Oluwole Aluko & Co that issued and signed the Notice of Appeal as the Appellant. Oluwole Aluko & Co it was submitted is not competent to issue and sign the Notice of appeal since the said firm is not a registered legal practitioner within the con of the relevant provisions of section 2(1) and 24 of the Legal Practitioners Act and having not been issued by a registered legal practitioner the Notice of Appeal signed, issued and filed by the said firm is incompetent, invalid, null and void. Since the Notice of Appeal is issued by the firm not authorized by law to Issue it the said Notice of Appeal and the grounds therein are incurably defective. It was further submitted that the issuance, signing and filing of the Notice of Appeal is fundamentally defective and where a Notice suffers such defect as in this instance the foundation of such an appeal collapses and there is therefore no appeal before this court. Reliance was placed on the following cases – N.N.B. PLC v. DENCLAG LTD (2005) 4 NWLR PART 916 page 54 pages 573 – 574; NWAEZE v. EZE (1999) 3 NWLR PART 595 page 410 at 418 A-F, NWANI v. BAKARI (2005) All FWLR (PART 281) 1803, 1822. The Respondent went on to distinguish this appeal from the case of REGISTERED TRUSTEES OF APOSTOLIC CHURCH v. AKINDELE (1967) 5 NSCC 117 AT 119 in that the notice Appeal to be signed by a litigant or the legal practitioner representing him gave the name of the legal practitioner as J.A. Cole & Co but was signed “J.A. Cole for J.A. Cole & Co.” and this was held to be proper by the Supreme Court. It was further submitted that the defect being fundamental cannot in anyway be cured by an amendment. Reliance was placed on the following cases – N.N.B. PLC v. DENCLAG LTD (Supra) at page 574 G-H; GLOBAL TRANS OCEANIC S.A. v. FREE ENT. NIG. LTD (2001) FWLR (PART 40) 1706 at 1710 C-D (S.C.). It was also further submitted that the issue of incompetent notice of appeal is not a technicality but of substance. The Respondent went further to say that with the defective Notice of Appeal, this court lacks competence to adjudicate on the issues raised and formulated on the grounds of appeal contained in the incompetent notice of appeal. Reliance was placed on the following cases NWANI v. BAKARI (Supra) at page 1826; INYANG v. EBONG (2002) FWLR (PART 125) 703, 734 D-E. In the light of the foregoing the Respondent urged the court to strike out the Appeal being incompetent and by virtue of order 3 Rule 2(7) of the Court of Appeal Rules 2002. Reliance was placed on GLOBAL TRANS OCEANIC S.A. v. FREE ENTERPRISES NIG. LTD (Supra) at 1719.

On the competence of ground 9 of the Notice of Appeal, the Respondent submitted that the said ground 9 of the Notice of Appeal is an appeal against costs only and that the Appellant did not obtain either the leave of this court or that of the lower court before filing the ground. Respondent therefore submitted that by virtue of section 241(2) (c) of the Constitution of the Federal Republic of Nigeria 1999, leave of the High Court or the Court of Appeal is required before a party can appeal against the decision of the High Court made with consent or as to costs only. Having not obtained the necessary leave, ground 9 of the Notice of appeal is incompetent and must be struck out.

Reliance was placed on DANKINGARI v. WARD & GREAN (2001) 5 NWLR PART 707 page 718 at 730 F-H. Respondent further submitted that an appeal against an order of costs even though made in a final judgment is an appeal against a distinct order and leave of court must be sought for and obtained. Reliance was placed on OTO v. ADOJO (2004) All FWLR PART 203 page 2151 at 2178. Respondent therefore urged the court to strike out ground 9 of the Notice of Appeal.

The Appellant brought a Motion on Notice dated 17/2/06 pursuant to Section 6(6) (B) of the 1999 Constitution and Order 3 Rule 3(1) of the Court of Appeal Rules 2002 for an order of court striking out the Notice of Preliminary objection of the Respondent on the grounds that-

(i) There is no statute that states that Notice of Appeal that is signed or endorsed by a firm of Solicitors is invalid because it is endorsed by a firm of Solicitors.

(ii) There is no penalty in the Rules of court or any statute against the Notice of Appeal that is signed by a firm of Solicitors and in the absence of such penalty the provision of the Rules of court or statute on the endorsement of a Notice of Appeal is a directory provision.

(iii) The Notice of Appeal is defective and invalid.

(iv) The decision of the Supreme Court in COLE v. MARTINS & OTHERS (1968) 1 All NLR page 161 at 164-165 that a Notice of Appeal that is signed by a firm of Solicitors is invalid has not been expressly overruled by the Supreme Court.

(v) The Notice of preliminary objection is based on a Technicality which is always discarded by the court.

Arguing the motion the Appellant in the Appellant’s Reply Brief to the Respondent’s Brief and Reply to the Brief on the Cross Appeal dated 5th January 2006 and filed on the 6th January 2006 submitted that there is no law that states that a Notice of Appeal that is signed by a firm of Solicitor or Barristers or by a legal practitioner alone in his firm name is null and void because it is So signed. The Appellant went on to say that in COLE v. MARTINS & ORS (1968) 1 All NLR page 161 at 164-165, the Notice of Appeal that was signed by “Lardner & CO” was held to be valid by the Supreme Court and the decision of the court below that the Notice of Appeal was invalid because it was signed by “Lardner & CO” was set aside by the Supreme Court. The Appellant went further to say that the issue that was raised in COLE v. MARTINS & ORS (Supra) as in this case was that Lardner & Co was not a registered Legal Practitioner under the Legal Practitioners Act 1962 and various High Court Rules and that the Notice of Appeal that was issued by Lardner & Co was invalid. The Supreme Court in setting aside the decision of the court below on the issue considered it as a mere technicality that must be discarded, appellant submitted. The Appellant again submitted that on the basis of the decision of the Supreme Court in COLE v. MARTINS (Supra) that “Ladner & Co.” referred solely to MR. H.A. Lardner and that the Notice of Appeal signed by “Lardner Co.” is valid, “Oluwole Aluko & Co. referred to Mr. Oluwole Aluko and the Notice of Appeal signed by “Oluwole Aluko &Co.” is valid. Appellant referred to the case of EKPEWIB v. THE STATE (1982) 6 SC page 1 at page 2 where the Supreme Court held that the Court of Appeal on its own motion should have amended the Notice of Appeal that was wrongly headed and that the appeal should not have been struck out and should have been heard on its merits. Appellant therefore urged this court to strike out the Notice of preliminary objection.

In response to this motion the Respondent filed a counter affidavit on the 5th April 2006 contending that-

(i) Paragraph 3 of the Appellant’s affidavit in support of the Motion to strike out the Notice of Preliminary objection which stated that Mr. Oluwole Aluko, Counsel to the Appellant signed all the processes in this case at the High Court in his name Oluwole Aluko & Co and the Notice of Appeal was signed by him also is false as the signature appended on the said processes in the lower court including the Notice of Appeal did not in any manner reflect the Appellant’s Solicitor’s name Oluwole Aluko or any name at all.

(ii) That contrary to paragraph 4 of the Appellant’s affidavit that Oluwole Aluko practices under his firm name Oluwole Aluko & Co, there is nothing to show that Mr. Oluwole Aluko is the only Solicitor practicing under the firm name of Oluwole Aluko & Co as the letter head of the firm indicates Barristers & Solicitors.

It is instructive to examine the case of AUGUSTA COLE v. SERGIUS OLATUNJI MARTINS AND ANOR (1968) 1 All N.L.R. 161.

This was an appeal from the decision of Sowemimo J. (as he then was) of the Lagos High Court. The short judgment from Somemimo J .(as he then was) reads as follows – “This is an appeal against the decision of the Learned Registrar of Titles given on the 11th November 1964. The appeal Notice and grounds were purported to be signed by a firm of Solicitors known as Lardner and Company. Under the Legal Practitioners Act of 1962 Lardner and Company is not a legal practitioner and therefore there had been no compliance with Order 3 Rule 2 of the High Court of Lagos (Appeal Rules). The appeal shall stand dismissed. I award $3.3s costs to the Respondents”. On appeal to the Supreme Court the apex court held that, “Having regard to the con of Rule 4 of the Registration of titles (appeals) rules, the purpose of which on this issue, is to ensure that the name of the legal practitioner giving notice of appeal and representing the appellant is clearly known, then it is a sufficient compliance with the requirement for a legal practitioner to sign and give his name, if a legal practitioner practicing alone gives the name under which he is registered as a business name, as this can only refer and apply to the legal practitioner who so holds himself out as practicing under the business name. No possible doubt or confusion can therefore arise in these circumstances.” It can thus be seen that the Supreme Court in allowing the appeal and setting aside the judgment of the Lagos High Court considered the issue a mere technicality. Since this case was decided the Supreme Court has consistently harped on the need to discard technicalities where resort to them would be at the expense of doing substantial justice. This is very clearly the case here. There is no doubt that Oluwole Aluko has been appearing for the Appellant in this matter. This is borne out by the court’s records which are taken judicial Notice of under Section 74(1)(m) of the Evidence Act.

The Respondent has also raised objection to the competence of ground 9 of this Notice of Appeal which is an appeal against costs only, contending that the Appellant did not obtain either the leave of this court of that of the lower court before filing the ground. It was submitted by the Respondent that by virtue of section 241 (2) (c) of the Constitution of the Federal Republic of Nigeria, the leave of the High Court or the Court of Appeal is required before a party can appeal against the decision of the High Court made with consent or as to costs only and having not obtained the necessary leave, ground 9 of the Notice of Appeal is incompetent and must be struck out. Reliance was placed on the case of DANKINGARI v. WARD & GREAN (2001 5 NWLR PART 707 page 718 at 730 F-H. The Respondent further submitted that an appeal against an order of costs even though made in a final judgment is an appeal against a distinct order and leave of court must be sought and obtained.

Reliance was place on the case of OTO v. ADOJO (2004) All FWLR (PART 203) page 2151 at 2178. He urged this court in the circumstance to strike out ground 9 of the Notice of Appeal. The Appellant does not appear to have proffered any argument in opposition to the Respondent’s submissions in the Appellant’s Reply Brief to the Respondent’s Brief and Reply to the Brief on the Cross Appeal dated 5th January 2006 and fled on the 6th January 2006 where the reply to Preliminary objection was made. Section 241(2)(c) of the 1999 Nigerian Constitution provides that, “Nothing in this section shall confer any right of appeal without the leave of the Federal High Court or a High Court or the Court of Appeal from the decision of the Federal High Court or High Court made with the consent of the parties or as to costs only.” There is no indication that the requisite leave highlighted above was obtained by the Appellant before filing ground 9 of the Notice of Appeal. There is merit in the submission of the Respondent and ground 9 of the Notice of Appeal is accordingly struck out.

There is no merit in the preliminary objection save for the striking out of ground 9 of the Notice of Appeal and same is accordingly struck out.

The Preliminary objection having failed, I shall now proceed to deal with the appeal proper. Out of the 9 grounds of appeal contained in the Notice of Appeal, the Appellant formulated the following eight issues which are contained on page 2 of the Appellant’s Brief of argument –

(i) Whether the decision of the learned trial Judge that the Appellant cannot exercise right of set off against the Respondent in respect of outstanding loan is perverse having regard to the fact that the Respondent did not request for further and better particulars of the pleading of the Appellant where the issue of set off and outstanding loan was raised and evidence of DW1 on it that was not challenged under cross examination.

(ii) Whether the decision of the learned trial Judge based on the evidence of DW1 manager of the Appellant read the defamatory letter Exhibit P35 and that there was publication of Exhibit P35 is perverse having regard to the provision of Section 77 of the Evidence Act.

(iii) Whether the learned trial Judge was right by awarding the sum of N1.5 million to the Respondent as general damages in the absence of averment in the pleading for claim for General damages and in the absence of evidence of any financial loss on which the assessment of damages could have been based.

(iv) Whether the award of general damages to the Respondent in the sum of Nl.5 million is in violation of the principle of double compensation having regard to the fact that the court granted the relief of the Respondent for the payment of his gratuity and pension.

(iv) Whether the learned trial Judge was right by holding that the Appellant did not lead evidence in support of certain averments in its pleading in view of evidence of DW1 on record and exhibits that supported the averments in the pleading of the appellant.

(v) Whether the learned trial Judge was right by basing his award of general damages in the sum of N1.5 million to the Respondent on the ground of his moral standing in the society which did (sic) feature in the pleading and evidence on record and raised suo motu by the court.

(vi) Whether the decision of the court below that the Respondent is entitled to gratuity and pension is perverse having regard to the fact that there is no relief for the conversion of the termination of appointment of the Respondent into retirement and non incorporation of the collective agreement into contract of employment.

(vii) Whether the cost awarded is punitive.

The Respondent on his part formulated the following six issues on page 10 of the Respondent’s Brief for the determination of this court-

1. Whether the defence of set off was properly pleaded by the Appellant as required by law to entitle it to exercise the right of set off against the Respondent.
2. Whether the publication of the defamatory letter was established by the Respondent.
3. Whether there was any basis for the award of damages by the trial court to the Respondent on the defamatory letter imputing commission of crime by the Respondent.
4. Whether the award of damages for the tort of defamation amounts to double compensation to the Respondent already adjudged to be entitled to his pension and gratuity under his contract of service with the Appellant.
5. Whether the decision of the learned trial Judge is perverse in the light of evidence adduced at the trial.
6. Issue VIII as formulated by the Appellant on ground 9 of the Notice of Appeal is adopted.

A cursory look at the issues formulated by the Appellant and Respondent shows vast areas in which they can be and are hereby harmonized as follows:-

ISSUE NO 1 – Whether the Defence of set-off was properly pleaded by the Appellant as required by law to entitle it to exercise the right of set-off against the Respondent.

ISSUE NO 2 – Whether the Respondent was defamed.

ISSUE NO 3 – Whether from the totality of the evidence before the court, the learned trial Judge was right in awarding the sum of N1.5 million to the Respondent as general damages.

ISSUE NO 4 – Whether the award of general damages to the Respondent in the sum of No 1.5 million is in violation of the principle of double compensation having regard to the fact that the court granted the relief of the Respondent for the payment of his gratuity and pension.

ISSUE NO 1 – Whether the defence of set-off was properly pleaded by the Appellant as required by law to entitle it to exercise the right of set off against the Respondent.

For a proper appreciation of the points being made here recourse must be had to the lower court’s judgment at page 63 of the record. There the learned trial Judge had stated that the particulars of the set-off referred to in paragraph 7 of the Statement of defence were not given and evidence led on it goes to no issue. The said paragraph 7 of the statement of defence which is contained on page 13 of the record states thus, “The gratuity of the plaintiff is N334,658.40 and the plaintiff has refused to come to the defendant for this because he has outstanding balance to pay to the defendant after setting off the various loans that he obtained from the defendant from his gratuity.” The Respondent then plaintiff in reaction to this said as follows; “The plaintiff avers in response to paragraph 7 of the statement of defence that the plaintiff was summarily terminated from the defendant’s employment vide the letter of termination which bore no indication of payment of any gratuity or set off’. The Appellant has submitted in the Appellant’s Brief that the Appellant’s witness DW1 gave evidence that the loan commitment of the Respondent is

N420,957.31. The Respondent’s counsel cross examined DW1 on the duration for the repayment of the loan to which DW1 responded that, “The loan given to the plaintiff have (sic) duration within which they are to be liquidated. Repayments are usually deducted from monthly salaries.” Appellant went further to submit that the Respondent’s counsel did not cross examine DW1 on the issue of particulars of the loan and his evidence on the sum of N420,957.31 that the ‘Respondent is owing the Appellant was not challenged and is deemed established in law. Reliance was placed on the following cases AJAO v. ASHIRU (1973) 1 All NLR PART 11 page 51 at 61; OKOYE v. NWULU (1988) 2 NWLR PART 76 page 359 at 365; EPEROKUN v. UNIVERSITY OF LAGOS (1986) 7 SC PART 1 page 196-197. It was also contended that the Respondent did not request for further and better particulars of paragraph 7 of the statement of defence and so the Respondent had waived his right. ATTORNEY GENERAL OF BENDEL STATE v. AIDEYAN (1989) 4 NWLR PART 118 page 646 at 678 was relied upon. It was again submitted that the material fact that is needed to be pleaded is the loan and evidence of DW1 establishing the amount due was not challenged under cross examination and is deemed established.

The Respondent has submitted in his Brief of argument that the learned trial Judge was right in holding that the Appellant failed to highlight in its pleading the facts giving rise to the set-off. He relied on BULLEN AND LEAKE & JACOB’S PRECEDENT ON PLELADINGS 12TH EDITION page 1297.

Also relied on is the case of OKOLO v. UBN (2004) All FWLR PART 197 page 981 at 1001. The Appellant went on to submit in the Appellant’s Reply Brief that the Respondent was in serious error by relying on the opinion expressed in BULLEN & LEAKE & JACOB without recourse to the facts of the case, Rules of court and the Evidence Act. It was further submitted in the Appellant’s reply Brief that the main issue as canvassed in the Appellant’s Brief of argument is that the Respondent’s counsel cross examined the appellant’s witness on the issue of duration of the repayment of the loan and his evidence on the issue of the amount of the loan was not challenged.

Furthermore the Respondent did not request for further and better particulars of the pleading on the issue of loan.

Learned counsel for the Respondent has referred this court to Bullen and Leake and Jacobs precedent on pleadings 12th edition page 1297. In a later edition – 13th edition, the learned authors had stated as follows at page 1418,

“The defence of set-off should plead the facts giving rise to the debt or claim sought to be set off as fully as if they were contained in a statement of claim and it should expressly state that the defendant will seek to set off such debt or claim in extinction or diminution of the plaintiffs claim.” Let me say very briefly and without any fear of contradiction that contrary to Appellant’s contention it is a notorious fact that BULLEN & LEAKE & JACOBS PRECEDENTS OF PLEADINGS has become part and parcel of our vast body of laws, together with the Evidence Act, the Constitution etc and the courts place a great deal of reliance on them. Having said so, the view expressed in Bullen & Leake and Jacobs Precedents is in conformity with the trite principle of law that pleadings should contain all material facts and if such material facts are not pleaded, evidence led on them goes to no issue. Facts giving rise to the debt of claim sought to be set off are such material facts and should have been fully pleaded by the Appellant in the statement of defence.

The evidence of DW1 on the issue of the amount of the loan not being challenged by the Respondent’s counsel on cross examination does not derogate from the trite principle of law that all material facts must be pleaded and the particulars of the loan advanced to the Respondent being such material fact ought to have been and was not pleaded. It is hardly the duty of the Respondent to help the Appellant put its house in order. Issue No 1 must therefore be and is hereby resolved in favour of the Respondent.

ISSUE NO. 2 – Whether the Respondent was defamed. – The claim of the Respondent under this issue is for damages for defamation. Appellant has submitted that no member of the public gave evidence on record that the Appellant published the defamatory letter exhibit P35 to him or her. In his judgment the learned trial Judge had relied on the evidence of DW1 that the manager of the Appellant read Exhibit P35 before he handed same to the Respondent and concluded that there was publication.

Appellant submitted that since the Manager of the Appellant did not give evidence on record that he read exhibit P35 oral evidence of DW1 to what the Manager of the Appellant did amounts to hearsay under S. 77 of the Evidence Act. Reliance was placed on the case of OLASEINDE v. A.C.B. LTD. (1990) 7 NWLR PART 161 page 180 at 190. Appellant further submitted that in order to establish publication of defamatory documents in law, there must be evidence on record from members of the public who read the defamatory document revealing the effect the contents of the document had on them and the opinion they now have about the person the document refers to after reading the said defamatory material. Reliance was placed on the following cases –

NSIRIM v. NSIRIM (1990) 3 NWLR PART 138 page 285 at 298; DAILY TIMES v. EMEZUOM (1990) 2 NWLR PART 132 page 340 at 355.

The Appellant further submitted that the evidence of DW1 shows that the Respondent got the letter from the Branch Manager in the course of his official duty and since the Branch Manager is an employee of the Appellant and since the receipt of exhibit P35 by the Respondent was through the Branch Manager the communication was privileged. Reliance was placed on ADENIJI v. FETUGA (1990) 5 NWLR PART 150 page 375 at 388. It was further canvassed in the Appellant’s Brief of argument that the evidence of the Respondent and the exhibits show clearly that the Respondent was never lowered in the estimation on the Branch manager. Reliance was placed on the book – The Nigerian Law of Torts Revised edition by Kodilinye and Aluko.

Reliance was also placed on the case of EGBUNA v. AMALGAMATED PRESS NIG LTD (1967) 1 All NLR page 25 at page 29. In conclusion Appellant submitted that since there is no evidence on record from any witness that Exhibit P35 was published to him or her or that the Respondent has been lowered in his or her estimation the decision of the court below that the Branch Manager of the Appellant read exhibit P35 is perverse as the Branch Manager did not give evidence on record before him. On the contrary Exhibit P37 shows that the Akure Branch Manager had a good impression of the Respondent and his other colleagues, attesting to their character, good conduct and patriotism.

The Respondent in his Brief of argument submitted that it is not in doubt that the words contained in the letter of termination were defamatory of the Respondent and the fact that no member of the public came forward to give evidence of having read the defamatory letter is irrelevant as far as the issue of defamation borders on a letter. Respondent relied on PULLMAN v. HILL (1891) 1 QB 524 at 527. Respondent further submitted that the holding of the trial Judge that the branch Manager of the Appellant who read the libelous material is properly fit as “a third party” and “a person other than the plaintiff’ is unimpeachable. Reliance was placed on DR. E.D. ESENNOWO v. DR. I. UKPONG & 1 OR (1999) 4 SC (PART 1) page 56 at page 59.

In its Reply Brief the Appellant submitted that publication of defamatory material must have adverse effect in the mind of the person who read it and that from exhibits before the court the Manager of the Appellant still held the Respondent in high regard.

Let me hasten to say that this issue is much simpler than all the words expended on it. The words contained in the termination letter exhibit P35 need not be repeated here as they had been stated earlier on in the judgment.

Whether the words were pungent or scathing is not the only issue here. No attempt has been made however by any of the parties to deny that they may well have been. The main question is whether they were defamatory of the Respondent in the legal sense. There is a plethora of cases, some already cited here that for words to be defamatory of a party, the said words must have lowered that party in the estimation of right thinking members of the public and there must be evidence of this from a person whose views of that party have been so adversely affected. The simple rationale is that everyone is entitled to his good name and reputation in a society where he co relates with others. A person’s estimation of himself after the publication of the alleged defamatory matter is irrelevant. It is the impression a third party forms of that person allegedly defamed that matters and unless and until that third party voices out his new impression of the party allegedly defamed there can be no defamation in the legal sense. That a party allegedly defamed by a publication is avoided by other people may not always have anything to do with the said publication.

There could be a thousand and one other reasons. No one knows the thoughts that are harboured in the inner recesses of anyone else’s mind unless and until that person voices them out. Exhibit P37 is an assessment by the Manager of the Akure Branch of the Appellant Bank of the Respondent and his colleagues whose appointments were terminated. This is contained in the judgment of the court below at page 66 of the Records, and it runs thus, “The four officers concerned are the key officers in the Branch. Infact they are the moving force in the branch, very hardworking and dedicated and they can never be associated with any fraudulent practice. These senior members of staff have put in between 12-26 years. They have been tested and one can conveniently attest to their character, good conduct and patriotism” There can be no greater testimony than this to show that the Respondent’s reputation was not lowered in the estimation of the Branch Manager. Issue 2 therefore has to be and is accordingly resolved in favour of the Appellant as the Respondent was not defamed.

ISSUE NO 3-

Whether from the totality of the evidence before the court, the learned trial Judge was right in awarding the sum of N1.5 million to the Respondent as general damages.

The award of the sum of N1.5. million damages to the Respondent was with respect to the alleged defamatory matter published of and concerning the Respondent – exhibit P35. The learned trial Judge could not have been right in awarding this sum or any other sum of money in favour of the Respondent as indeed there was no defamation. As earlier stated in the body of this judgment no member of the public gave evidence of his impression of the Respondent – evidence that as a result of the alleged libellous matter, he does not any longer hold the Respondent in the same high esteem as he used to do. The expressed impression of others about the person whose reputation has been tarnished by an alleged act of defamation be it libel or slander is undoubtedly the most important ingredient in the tort of defamation. Neither the outward manifestations or avoidance of the person allegedly defamed nor the unwillingness to smile with that person are sufficiently indicative that he is no longer regarded as a person to draw near to. There must be evidence from that third party that he no longer holds the person allegedly defamed in the same high regard that he used to do. In this regard the well known saying that “actions speak louder than voice” is untenable. This issue is therefore resolved in favour of the Appellant.

ISSUE NO.4-

Whether the award of general damages to the Respondent in the sum of N1.5 million is in violation of the principle of double compensation having regard to the fact that the court granted the relief of the Respondent for the payment of his gratuity and pension.

This issue which is formulated by the Appellant and Respondent in their respective Briefs of Argument is relevant only from the perspective that the court below granted the relief of the Respondent for the payment of his gratuity and pension since, as we have earlier seen, the learned trial Judge was wrong to have held that the Respondent was defamed and so the court’s award to him of N1.5 million damages for defamation could not have been right. In the absence of the court’s finding that the Respondent was defamed and the attendant award of N1.5. million as damages to him, was the relief granted to the Respondent for the payment of his gratuity and pension justified? In the treatment of this question the issue of double compensation no longer arises.

Respondent pleaded Exhibit P310, the collective agreement which regulates his appointment with the Appellant company and gave ample evidence of how same was breached by the Appellant. There was also evidence that disciplinary procedure as contained in article 4 of exhibit P9 was not followed. DW1’s evidence was scanty and did not address these issues especially that the Appellant did not give any notice or make any payment in lieu of notice before the Respondent’s appointment was terminated. The Appellant had even admitted at page 12 paragraph 7 of the record reproduced on page 2 of the Appellant’s Brief of argument that “The gratuity of the plaintiff is N334,658.40, ” and so the question that the Respondent could not be entitled to his gratuity and the pension that usually goes with it is untenable.

The finding of the learned trial Judge that where a collective agreement is incorporated or embodied in the condition of a contract of service as in the instant case whether expressly or impliedly it will be binding on the parties for which he relied on the following cases – FESTUS OPEOLUW A DAODU v. UNITED BANK FOR AFRICA PLC (2004) 9 NWLR PART 878 page 276 at 280; FRIDAY ABALOGU v. THE SHELL PET. DEV CO LTD (2003) 13 NWLR 312 cannot be faulted. This issue as now formulated must be and is hereby resolved in favour of the Respondent.

The Respondent filed a Cross Appeal, argument on which are incorporated on pages 19 and 20 of the Respondent’s Brief of argument. The only issue for determination in this Cross Appeal is whether the amount of N1.5 million awarded as general damages by the trial court for the defamation of the Respondent Cross Appellant is low. As observed earlier the argument on defamation fell like a pack of cards and so the cross appeal also fails and is dismissed.

The Appeal therefore succeeds in part and is allowed in part and the following order is now made-

(1) The order made by S.A. Sidiq J. of the Akure High Court in his judgment delivered on the 31st January 2005 in Suit No. AK/23/2003 directing the Defendant (now Appellant) to pay the Plaintiff (now Respondent) all his terminal benefits including gratuity and pension as contained in the MD circular Ref MD & CE/CON.20/09.99 of 16th September 1999 as follows:

(i) One month salary in lieu of Notice N14,678.00

(ii) Gratuity of 190% of terminal basic salary N334,658.40

(iii) Leave allowance 2002 N21,136.32

Total N370,472.72

(iv) Pension of 64% of terminal basic salary – N9,393.92

payable forthwith is hereby affirmed.

(2) The award of the sum of N1.5 million in favour of the Plaintiff (now Respondent) being damages for defamation (libel) contained in the said judgment is hereby set aside.

No order as to costs.

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Other Citations: (2006)LCN/2141(CA)