Wilbros Nig. Ltd. & Anor. V. Onwume Macaulay (2009)
LawGlobal-Hub Lead Judgment Report
SULEIMAN GALADIMA, J.C.A.
This is an appeal against the decision of T.K. Osu (J) sitting, at the High Court of Rivers State delivered on 11/6/1996, entering judgment in favour of the Respondent in the sum of N740,000 (Seven Hundred and Forty Thousand Naira).
At the trial, the Respondent as plaintiff in his amended statement of claim, claimed for various declarations against the 1st and 2nd Appellants, as defendants, jointly and severally as follows:
1. A declaration that his dismissal from the 1st Appellant was null, void and of no effect.
2. A declaration that his detention by the police, on the instruction, instigation, complaint or report of the Respondent was malicious, without reasonable grounds and unlawful.
3. A declaration that the detention of his uncle’s car by the police without any reasonable ground was unlawful and unconstitutional.
4. A declaration that he had been maliciously by the Appellants in copying his dismissal letter to several third Parties.
5. The Respondent also claimed special damages for unlawful dismissal (representing what he would have earned if he had continued in employment for 20 years at the rate of his current stipulated 5% annual increment as the time of his termination) in the sum of N1,562,429,62 (One Million, Five Hundred and Sixty-Two Thousand, Four Hundred and Twenty Nine Naira, Sixty-Two Kobo only).
This included N5000,000 (Five hundred thousand naira) in aggravated and exemplary damages for declaration and N60,000 (Sixty Thousand Naira) for unlawful detention of Respondents uncle’s car from December 1990 – July 1991 .
Pleadings were duly filed and exchanges by the parties to the suit. The Appellants contended before the Trial Court that the dismissal of the Respondent was in accordance with clause 26.5 of the Contract of Employment that the Respondent was involved in fraudulent activity in its payroll section which had culminated in the loss of N553,008.16 by the 1st Appellant. The Appellants denied defaming Respondent as they were not responsible for neither the detention of the Respondent nor his uncle’s car.
The Respondent called 3 witnesses and tendered some documents as Exhibits in evidence. The Appellants on their part tendered three documentary evidence through 4 of their witnesses.
After consideration of the evidence by both parties the learned trial Judge held that the dismissal of the Respondent was unlawful because the 1st Appellant did not comply with clause 26.5 of the Employment Contract. His Lordship accordingly awarded damages against the Appellants jointly and severally in the total sum of N740,000.
Dissatisfied with the decision of the learned trial Judge, the Appellants have appealed to this court on seven grounds set and in the Notice of Appeal filed on the 14th day of June, 1996 as follows:
“1. The judgment is against the weight of evidence.
2. The learned Trial Judge erred in law when he held that the considerations applicable in the computation of damages for wrongful dismissal are not applicable to unlawful dismissal.
3. The Learned Trial Judge erred in law in assessment of the Damages for unlawful dismissal by proceeding on wrong principles of law and in total disregard of the decision of the Supreme Court in OLATUBOSUN V. NISER 1988 3 NWLR Pt. 80 page 25 at page 55 and 56.
4. The Learned Trial Judge having held that there was fraud and that it was not only plaintiff and PW3 that were responsible for the fraud misdirected himself on the facts when he thereafter held that the report made to the police was improper and the detention was unlawful and based on this finding proceeded to award damages for imprisonment.
5. The Learned Trial Judge erred in law when he held that Exhibit A was copied to different people particularly the 1st Defendant’s branch of Nupeng comprising many workers and based on this finding proceeded to award damages for defamation.
6. The Learned Trial Judge erred in law and on the facts when he held as follows:
“There is evidence that the police upon arresting the plaintiff detained him and put on the notice board the offence of stealing against his name. The police station is a public place and any information on the notice board is for the public consumption.”
7. The Learned Trial Judge erred in law in making an award for damages for unlawful detention of Plaintiff s uncle car when the plaintiff did not lead evidence to show that the Defendant was Instrumental to the detention of the car.”
Learned counsel for the parties, in compliance with the practice and procedure prescribed try the Rules of this court filed and exchanged their briefs of argument. The Appellants’ brief of argument upon an application filed on 14/11/2008 was deemed filed on 19/1/2009. Similarly by his Motion and Notice of 18/11/2008 time was extended to 19/1/2009 for him to file his Respondent’s brief of argument.
This Appeal came up for hearing on 19/1/2009. Learned counsel for the Appellants P.O. ONYEKWERE Esq. adopted and relied on the Appellants, brief of argument as his submissions and arguments in support of the appeal. He urged the court to allow the appeal. C.E. AGBITI Esq. who appeared for the Respondent also adopted the Respondent’s brief of argument as his submissions in response to the appeal. He urged the court to dismiss the appeal.
In the Appellants’ brief of argument THREE ISSUES were distilled and presented for determination in the appeal as follows:
“4.1 Whether the Court was correct to have declared that the dismissal of the Respondent by 1st Appellant was unlawful null and void when the employment was one of common law master and servant relationship. (Ground 2 of the Appeal.)
4.2. Whether the Learned Trial Judge applied the correct principles on its computation of damages of the Respondent for unlawful dismissal? (Ground 3 of the Appeal)
4.3. Whether upon a proper evaluation of the evidence led by both parties, the Respondent succeeded in making out and proving the ingredients of libel against the Appellants. (Ground 1 of the Appeal)”
On his part Learned counsel for the Respondent submitted FIVE Issues for determination on the appeal. These are as follows:
“1. Was the Learned Trial Judge not right in the assessment of damages for unlawful termination of the plaintiff’s employment in the circumstances of this case? (Grounds 2 and 3).
2. Having accused and punished the plaintiff before handing him over to the police are the Defendants not the masterminds in the unlawful detention of the plaintiff and thus liable for his unlawful detention? (Ground 4).
3. Was the publication of libel not sufficiently, pleaded and proved in this case and if sufficiently pleaded and proved was the judge wrong to have awarded the amount of damages awarded in this case? (Grounds 5 and 6).
4. Was there no evidence showing that Defendants were instrumental to the detention of the Plaintiff and his uncle’s car? (Ground 7)
5. Was the judgment in this case not in consonance with the evidence?”
A number of preliminary issues have been raised by the Respondent in a form of preliminary objections to the hearing of this appeal. As it is the practice, these issues must be considered first. The first issue is the fact that the Appellants proffered no argument in support of their grounds 4, 5, 6 and 7. For this reason the Respondent has urged the court to regard the ground as abandoned by the Appellants and to uphold the judgment of the trial court in the abandoned ground.
This observation of the Respondent is well and firmly grounded. Careful perusal of the issues presented by the Appellants for determination of this appeal clearly shows that none of their three issues cover grounds 4, 5, 6 and 7. In law these grounds must be regarded as abandoned. See AKIBU V. ODUNTAN (2000) 13 NWLR (Pt. 685) 446 at pages 461 – 462; (2000) 7 SCNJ 189 at 205; SPARKLING BREWERIES LTD & ORS V. UNION BANK OF NIGERIA LTD. (2001) 7 SCNJ 321 at 324.
This court can only hear and decide on an issue raised and the grounds of appeal filed before it. An issue not covered by any ground of appeals will be treated as incompetent and struck out. See ACHIAKPU v. NDUKA (2001) 14 NWLR (Pt.734) 623 at 663.
In the instant case the legal consequence of the foregoing is that the findings of the trial court touching on the complaint arising from grounds 4, 5, 6 and 7 of the grounds of Appeal have not been ventilated. For, there are no arguments in support of the grounds already reproduced above. Ground 4 touches and complains about detention of the Respondent and award of damagers on that behalf; Grounds 5 and 6 touche and concern the defamation of the Respondent and the award of damages in that regard. The issue canvassed in ground 7 concerns the detention of the Respondent’s uncle’s car and award of damages in that regard. However, I do not agree with the learned counsel for the Respondent that no issue was raised from ground 1 of the ground of Appeal. It is very clear that Appellants’ Issue No.3 was raised from ground 1 of the ground of appeal. Again, I cannot sustain the Respondent’s counsel contention that Issue No.1 of the Appellant does not derive from any ground. Issue No.1 derives or is distilled from ground 2 of the ground of Appeal.
In the light of the above the Appellants having proffered no argument in support of grounds 4, 5, 6 and 7, this court must regard the grounds as abandoned by the Appellant. The question now is whether I can uphold the findings and decision of the trial court. I am mindful of the fact the Appellants have their three issues presented for the determination of this appeal. I shall in the circumstances rely and adopt these issues:
ISSUE 1
Learned counsel for the Appellants observed that the learned trial judge in his judgment found as fact that the dismissal of the Respondent by the Appellants was not in compliance with clause 26.5 of the Respondent’s contract of Employment (Exhibit A) and pronounced his dismissal to be unlawful, null and void. He submitted that trial court misconceived the legal principles relating to the status and effect of unlawful dismissal. Relying on the Supreme Court case of UNION BANK OF NIGERIA PLC V. OGBOH (1995) 2 NWLR (Pt.380) 647 at 664. Learned counsel contended that in a Master and Servant relationship, the termination of an employment in that is inconsistent with the terms of the employment agreement connotes only wrongful termination of appointment or dismissal. He further cited in reliance the decision of this court in EZEKWERE V. GOLDEN GUINEA BREWERIES LTD. (2000) 8 NWLR (Pt.670) 648 and GEIDAM v. NEPA (2001) 2 NWLR (Pt.696) 45 at 55 – 56, U.T.C. (NIG.) LTD. V. NWOKORUKU (1993) 3 NWLR (Pt. 281) 295 at 309; KWARA NVESTMENT CO. LTD. V. GARUBA (2000) 10 NWLR (Pt. 674) 25 at 36.
Applying the principles set out in the foregoing authorities, it is submitted by the learned counsel for the Appellants that the dismissal of the Respondent was valid and effective in law, notwithstanding any breach of contractual term by the 1st Appellant, though damages might be recoverable. Alternatively learned counsel submitted that there was sufficient evidence on record to justify the summary dismissal of the Respondent by the 1st Appellant. That a master has a right to summarily dismiss a servant the servant has indulged in conduct inconsistent with due and faithful discharge of the duties for which he was engaged. Reliance was placed on the case of ANTE V. UNIVERSITY OF CALABAR (2001) 3 NWLR (Pt.760) 239 at 258 – 259; and UBA V. OGBOH (supra). See also HALSBURY’S LAWS OF ENGLAND Vol. 25 page 483 paragraph 485. He concluded that the decision of the learned trial judge was not borne out of the evidence before him to justify his finding that the Respondent’s dismissal was null and void.
Learned counsel for the Respondent on this issue, submitted that though the argument of the Appellants in their brief, was right in exposition, but it is wrong in application. That the finding of the trial court that the dismissal was unlawful was not challenged by the Appellants.
The learned Trial Judge found that the Respondent’s dismissal was not in compliance with clause 26.5 of the contract of Employment (Exhibit ‘A’. Consequently he pronounced the dismissal of the Respondent to be unlawful, null and void. What are the legal principles relating to the status and effect of unlawful dismissal?
The law is settled that in a Master and Servant relationship, the termination of an employment in a manner that is inconsistent with the terms of the employment agreement connotes only wrongful termination of appointment or dismissal.
The position of the law was explained quite succinctly by the Supreme court per Belgore J.S.C. (as he then was) in UNION BANK QF NIGERIA LTD V. OGBOH (1995) 2 NWLR (Pt.380) 647 at 664 thus:
“With greatest respect, this is not the law. Except in employment governed by statute wherein the procedure for employment and discipline (including dismissal) of an employee are clearly spelt out, any other employment outside the statute is governed by the terms under which the parties agreed to be master and servant. Employment with statutory backing must be terminated in the way and manner prescribed by that statute and any other manner of termination inconsistent with the relevant statute is null and void and of no effect”.
His Lordship gave so many examples especially in the cases decided under the constitution and statutes in recent times. These include University of Lagos Act, 1962, sections 13(2) 18(c) and 61 under which the apex court decided OLANIYAN V. UNIVERSITY OF LAGOS (1985) 2 NWLR (Pt.9) 599, 683; University of Maiduguri Act S.17 under which FEDERAL SERVICE COMMISSION V. LAOYE (1989) 2 NWLR (Ft.106) 652 was considered, University of Ife Edict. 1970 Ss, 4, 6 and 16 under which AKINTEMI V. ONWUMECHILI (1985) 1 NWLR (Pt.1) 68 was decided. Others are EKPEROKUN V. UNIVERSITY OF LAGOS (1986) 4 NWLR (Pt.34) 162; AIYETAN V. NIFOR (1987) 3 NWLR (Pt.59) 48; GARBA V. FEDERAL SERVICE COMMISSION (1988) 1 NWLR (Pt.71) 449 and SAPARA V. UNIVERSITY COLLEGE HOSPITAL MANAGEMEM BOARD (1988) 4 NWLR (Pt.86) 581 ‘” He explained further in the following words:
“In other cases governed only by arrestment of parties and not by statute removal by way of termination of appointment of (sic) or dismissal will be in the form agreed to; any other form connotes only wrongful termination or dismissal but not to declare such dismissal null and void: the only remedy is a claim for damages for the wrongful dismissal. This is based on the notion that no servant can be imposed by the court as an unwilling master even where the matter’s behaviour is wrong. For his wrongful act he is only liable in damages and nothing more.”
See also EZEKWERE V. GOLDEN GUINEA BREWERIES LTD (2000) 8 NWLR (Pt.670) 648; and GEIDM V. NEPA (2001) 2 NWLR (Pt. 696) 45 at 55 – 56.
I shall explain further. In the instant case the Respondent employment was based on a contract Exhibit ‘A’. The relationship between the Respondent and the Appellants was master and servant. As it has already been said, in a master/servant relationship, a termination of appointment that is at variance with the contract still takes effect in bringing the employment to an end. The fact that the dismissal of a servant is otherwise than in accordance with the procedure laid down in his contract of service, does not however in a case, where the rights of the parties are regulated by contract normally prevent dismissal from being effective to terminate the contract. In such case the servant’s remedy is in damages. See U.T.C. (NIG) LTD. V. NWOKORUKU (1993) 3 NWLR (Pt.281) 295 at 309; KWARA INVESTMENT CO. LTD V. GARUBA (supra).
In the light of the foregoing one would ask if the findings of the learned trial judge, with due respect, were not erroneous. He held that the dismissal of the Respondent was unconstitutional, illegal, null and void and of no effect and that the effect of this in law is that there had not been any dismissal at all. Applying the principles set out in the foregoing authorities of troth the apex and this court, the dismissal of the Respondent was valid and effective in law. The Respondent’s employment with the 1st Appellant was determined, and it came to an end, notwithstanding any breach if any, of contractual term by the Appellants. In any case if his dismissal was found to be in breach of contractual agreement damages might be recoverable. Clearly this is the position taken in the foregoing authorities with due respect to the learned trial judge, I do not agree with him that there had not been any dismissal of the Respondent. There was sufficient evidence on the record to justify his summary dismissal by the 1st Appellant.
It is settled law that a master has a right to summarily dismiss a servant where the servant has indulged in conduct inconsistent with due and faithful discharge of the duties for which he was engaged. Where an employee is guilty of gross misconduct which has been defined as a conduct of a grave and weighty character as to undermine the confidence which exists between the employee and his employers or working against the deep interest of the employer he could be lawfully dismissed summarily without notice and without wages. See BOSTON DEEP SEA FISHING CO. V. ANSELL (1888) 39 Ch. D.339; BABATUNDE AJAYI V. TEXACO (NIG) LTD & ORS (1987) 3 NWLR (Pt. 62) 577; OLANIYAN V. UNIVERSITY OF LAGOS (supra) UBA LTD V. OGBOH (supra) and ANTE V. UNIVERSITY OF CALABAR (2001) 3 NWLR (Pt.700) 239 at 258 – 259. Under common law and statute law, disobedience of lawful order from a servant high or low is viewed with seriousness attracting summary dismissal. See Professor OLATUNBOSUN V. N.I.S.E.R. Council (1988) 3 NWLR (Pt.80) 25.
The Respondent led evidence to show a loss of N553,000.60 as a result of fraudulent activities in the payroll Department where he and PW2 worked. By his own showing and admission the Respondent discovered serious financial disparities “an unusual swell” in the administration of payment of salaries. He failed to report this discovery to the Appellants, though he was aware of the controversy surrounding the payments. Rather he and PW2 admitted accepting various “gifts” and other “unusual token” of generosity from the very officials both claimed to suspect of perpetrating fraud against their employer. I must say here that such conduct of the Respondent was grossly inconsistent with due and faithful discharge of the duties of a payroll clerk entrusted with large sums of money each month. In accepting dubious gifts and gratifications from the officials the Respondent and pw2 accused of defrauding the 1st Appellant, the Respondent has clearly an inclination to work against the deep interest of the1st Appellant. The 1st Appellant could not reasonably be expected to retain him in such a sensitive financial position in view of the scaled losses inflicted by the fraudulent activities by the Respondent, pw3 and others in its payroll Department. The admission of the Respondent and pw2 that they accepted a cash gift is clear and unambiguous.
I agree with the learned counsel for the Appellants that the learned trial judge misdirected himself on the facts when he stated at page 154 of the records that “apart from the allegation of cash gift which the plaintiff denied in his evidence, all other facts in my opinion need to be supported by documentary evidence”. This misdirection weighed heavily on his Lordship’s mind and this led him to come to the wrong conclusion that he did not believe “only the plaintiff and pw3 were responsible for the alleged fraud.” Based on the evidence adduced by the parties and particularly the admissions made by the Respondent and pw3, the Appellants had clearly established and proved the complicity of the Respondent, pw3 and others in the perpetration of the financial fraud in the 1st appellant company.
In the light of the foregoing admissions by the Respondent, the, learned trial judge was correct on his findings at pages 156, lines 16 – 24 of the Records that “it would appear from the issues raised by the defence, the basic confidence which an employer reposes in the employee is eroded and is no longer there or existing. His Lordship further correctly stated the position of the law on this matter, when he said:
“Where an employee has been accused of a serious criminal offence such as stealing or theft and dismissal, I do not imagine that such an employer would be prepared to tolerate the employee to continue with the job. It would be foolhardy to force such an employee upon the employer since the basis for confidential relationship between the two parties has fallen apart and does not exist any longer.”
If so, a finding thereafter that the Respondent’s dismissal” was without lawful justification was unwarranted because the Respondent in the circumstance of this case was lawfully dismissed by the Appellants; in exercise of its authority to dismiss staff indulging in gross misconduct.
That being the case, I hold that it may not be proper for the trial court to declare the dismissal of the Respondent by the 1st Appellant as unlawful null and void and ineffective. Issue No.1 is therefore answered in the negative.
ISSUE 2
This issue is whether the Learned Trial Judge correctly applied the laid down legal principles in the computation of damages for unlawful dismissal.
I have carefully studied the claim put forward by the Respondent in his statement of claim. It was in the nature of special damages covering his annual income from 1990 – 2009, totaling N502,429.62. The trial court awarded the sum of N300,000 out of this sum; which he claimed he would have been entitled to if he had worked for another twenty years. This lump sum was awarded by the court without showing which of the items of special damages in paragraphs 25(i) 25(xx) this award represented. It is contended in the Respondent’s brief that even if the court failed to specify the period that amount represented, this court pursuant to section 15 of the Court of Appeal Act Cap. C.36 LFN 2004 could assess ad award the appropriate damages.
Section 16 Court of Appeal Act (1976) Cap. 75 Laws of the Federation of Nigeria 1990, (now S. 15 cap. C.36 Laws of the Federation 2004) gives very wide powers to this court to evaluate evidence and may reject conclusions of the trial Judge from facts which do not flow from the evidence or may be regarded as perverse. It gives this court amplitude of power to deal with any case before it on appeal, this power includes the jurisdiction of courts first instance. See JADESIMI V. OKOTIE-EBOH (1986) 1 (1986) 1 NWLR (Pt. 16) 264; OKOYE V. SANTILI (1990) 2 NWLR (Pt.131) 172; FAJEBE FOODS and POULTRY FARMS (1994) 5 NWLR (Pt.344) 325. In CHIEF IGIEHON V. OMOROGIE (1993) 2 NWLR (Pt.276) 398, this court held that the section confers wide powers on the court to enable it make orders which the High court would have made in a matter. See further CHIEF EJOWHOMU V. EDOK-ETER MANDILAS LIMITED (1986) 5 NWLR (Pt.39) 1; IGWESHI v. ATU (1993) 6 NWLR (Pt.300) 484; CHIEF UZOUKWU V. IGWE EZEONU II (1991) 6 NWLR (Pt.200) 708.
However, it must be noted that this court is not an “avant-guarde” with powers of review of cases decided by the court below, looking for or raking up mistakes made by it. The powers given by this section must necessitate the finding of facts reserved by the lower court which it has clearly ought to have done. In this case at hand, I do find such circumstances that will necessitate me to embark on the powers of review of the findings of the lower court as regards the re-assessment of special damages. For the law is well settled that special damages must be strictly proved before they can be awarded. It is not the law that a party claiming special damages can, in the absence of proof of special damages, be awarded general damages instead. See the cases of SHELL PETROLEUM DEVELOPMENT CO. V. TIEBO VII (1996) 4 NWLR (Pt.445) 657 at 658 and INCAR (NIGERIA) LTD V. ADEGBOYE (1985) 2 NWLR (Pt.84) 53.
The award of a lump sum of N300.000 was in the nature of general damages, whereas a plaintiff in an action for wrongful or unlawful dismissal is not entitled to general damages because such general damages belong to the realm of claims in tort, while actions for damages for wrongful or unlawful dismissal are based on contract. See P.Z. LTD. V. OGEDENGBE (1972) 1 All NLR (Pt.1) 2002 at 205 – 206; FEDERAL COLLEGE OF EDUCATION V. ANYANWU (1997) 4 NWLR (Part 501) 533 at 561. In CO-OPERATIVE DEV. BANK ESSIEN (2001) 4 NWLR (Pt.704) 479 at 492, a matter in which the plaintiff brought a claim for wrongful dismissal, the Court held that in the consideration of an award in consequence of a breach of contract of employment the measure of damages is the loss flowing naturally from the breach and is incurred in direct consequence of the violation. It held further that the damages recoverable are the losses reasonably foreseeable by the parties and foreseen by them at the time of the contract as inevitably arising if one of them broke faith with the other. That in the contemplation of such a loss, there can be no room for claims which are merely speculative or sentimental unless these are specially provided for by the terms of contract. In the instant case, the measure of damages used by trial court was wrong. It is settled law that the proper measure of damages to be awarded in cases of breach of contract of employment is what the employee, in cases of contract of employment would have earned had a proper notice being given in compliance with the contract of service. See OGBAJI V. AREWA ILES PLC. (2001) 11 NWLR (Part 678) 335 and UTC (NIG.) LTD. V. NWOKORUKU (supra). Where, as in this case, a contract of service is silent regarding the period of notice before employment can be terminated the claim required a “reasonable” period of notice to be given. At common law, a reasonable period is generally one month. See NITEL PLC V. OCHOLI (2001) 10 NWLR (Pt.720) 188 at 220 and OGUNSANMI V. C.F. FURNITURE (NA) CO. LTD (1961) All NLR (Patio) 862. In applying this principle, to the instant case, it is my respectful view that the Respondent should have been awarded the equivalent of one month’s salary as damages for wrongful termination of his employment with the Appellants and not N300,000. It is clearly evident from the Records of proceedings at the trial that the award of damages by that court was predicated on compensating the Respondent for the loss of service for a period of 20 years. An award of damages for the unlawful termination of a relationship between a master and a servant, the number of years that a servant would have been in the employment, but for that said termination, is not relevant. Such a consideration is relevant only in the case of fixed term/permanent or statutory employments. See NITEL PLC. V. OCHOLI (supra). – The trial court has acted in disregard of the principles considered in the foregoing cases and this court in the circumstance is entitled to interfere with claim of the Respondent, which is gold-digging and not one that he was entitled under the law. See JIMOH V. INDUSTRIAL TRAINING GOVERNING COUNCIL (2001) 4 NWLR (Part 703) 281 at 301.
In paragraph 5 of their Brief of argument the Appellants have argued issue No.3 on the question of unlawful detention of the Respondent. It is curious as this is not one of the three issues nominated by Appellants. The issue stands on its own in isolation and not having been one of the issues distilled for the consideration of this appeal, it must be discountenanced.
Now to the Appellants’ issue No.4 so argued in their brief of argument. This is the 3rd issue nominated by the Appellants in their paragraph 4.3 of the Brief. It is raised from ground 1 of the grounds of Appeal. It is whether from the evidence led by both parties the Respondent succeeded in making out and proving the ingredients of libel. It is the contention of the Appellants that the Respondent’s claim should have failed because he failed to properly plead libel in accordance with the law’ and also failed to establish crucial ingredients of the tort of libel. On the part of the Respondent it is submitted that the learned trial judge painstakingly recorded the whole evidence reviewed and evaluated it and arrived at the right conclusions.
The claim of the Respondent for libel was based on alleged copying of the dismissal letter Exhibit ‘A’ to some third parties.
In an action for libel in a letter or memorandum, the plaintiff must specify the date on which the libel was published, as well as the persons to whom it was published.
See GATLEY ON LIBEL and SLANDER, 8th EDITION paragraph 10.6(5). In his paragraph 17 of the amended statement of claim, the Respondent neither specified the date on which the Appellants published the alleged defamatory letter nor the persons to whom the letter was dispatched. In paragraph 17 of his amended statement of claim it is stated that:
“The said letter of termination was copied to several third parties including the workers’ Union alleging that the plaintiff was being dismissed as a thief – -”
In his testimony, pw3 sought to rectify this omission by rendering unpleaded evidence of the identity of these persons when he said “Exhibit A was copied to Pay Roll Office to Nupeng-WML – “and to the Managing Director W.E. Spencer and to TULSA International headquarters. A point to be noted here is that the evidence led on fact not pleaded goes to no issue and cannot be relied upon by the Court to found a decision. Such evidence even if mistakenly taken ought to be ignored by the trial Judge in coming to his conclusion in the matter before it.
This court has done this per AKINTAN JCA (as he then was) in SUNMONU v. SAPO (2001) 5 NWLR (Part 705) 64 at 76; following the earlier decisions of the WACA in ADENUGA v. L.C.T (1950) 13 WACA 125, our apex court in NATIONAL INVESTMENT and PROPERTIES CO. LTD. V. THOMPSON ORGANIZATION LTD. (1969) NMLR 99 and WOLUCHEM V. GUDI (1981) 5 SC 291. It follows therefore that the learned trial Judge came to a wrong conclusion when he relied on facts not pleaded to come to his decision on the claim of libel by the Respondent.
Furthermore, the Respondent failed to prove publication of Exhibit A. Publication means making known of the defamatory material to the third parties other than the plaintiff and this must be proved by him in order to succeed in a claim of libel in the case of libel through a letter. It is not sufficient to merely plead and testify that the document was copied to the parties listed therein. It must be established that the contents of the letter was actually read and understood by third parties. The fact that the document on its face purported to be copied to other parties does not establish the fact of publication to these parties. See YAHAYA V. MUNCHIKA (2000) 7 NWLR (Pt.664) 300. I entirely agree with the learned counsel for the Appellant that the Respondent in this case has failed to produce any scintilla of evidence before the trial court showing the dispatch of Exhibit ‘A’ to any third party. No evidence that the content of this Exhibit was brought to the actual knowledge of any of the parties said to have been copied. None of them was called to testify neither as to the receipt of the letter nor as to the effect of its contents on their estimation of the plaintiff. Pw3 the only party who testified as to his estimation of the plaintiff obtained his knowledge of the Respondents problems from the Respondent himself and Exhibit ‘A’. The learned trial judge, with due respect, relied on the mere ipse dixit of pw2 who was neither among the listed third parties in Exhibit ‘A’ nor involved in the alleged dispatch of the letter to establish the publication of Exhibit ‘A” in ANATE V. SANUSI (2001) 1 NWLR (Pt.735) 542, in considering the question of what constitute publication in a claim based on libel, this court emphasized the requirement of the law that positive evidence that the offending material had been communicated to third parties. Reliance was placed on an earlier Supreme Court decision in A.J. AKAIYE V. OKADEJI (1972) 1 SC. It was decided that the plaintiff in that case had failed to prove publication of defamatory statements contained in a newspaper, though the paper had been tendered and admitted as an Exhibit. The apex court held that the mere fact that the paper had been published was not sufficient evidence of actual communication of the libel to the parties. See also further the case of OKPARA V. UMEH (1997) 3 NWLR (pt. 511) 95 at 107. FBN PLC v. ABOKO (2007) 1 NWLR (Pt. 1014) 129 and AYENI v. ADESINA (2007) 7 NWLR (Pt. 1033) 233.
I am mindful however, of the Appellant’s alternative argument. It is that assuring Exhibit ‘A’ was published to other branches of the 1st Appellant, that the occasion was privileged. I have found this as an interesting proposition of our law of defamation. According to the Respondent’s pleading and testimony Exhibit ‘A, was copied to officials, other branches of the 1st Appellant and to the Respondent’s Union. This is a communication made by a person with an interest in the subject matter to another person with a corresponding interest in receiving the communication. In law this communication is privileged. See GATLEY ON LIBEL AND SLANDER 8TH Edition, page 505 paragraphs 504-505 Also DUNCAN AND NEIL: Defamation (Butterworth 1978 Cap. 14). In the instant case all the third parties to whom Exhibit ‘A’ is alleged to have been copied by the 1st Appellant had legitimate interest in the employment status of the Respondent at least for the purposes of good record keeping.
A similar situation arose in the English case of HUNT VS. G.N.R.Y. (1891) 2 QB 189 cited by the Appellants. The issue in that case was that the plaintiff was a guard in the service of the Respondent Company. He was dismissed for alleged gross dereliction of duty. The fact of the plaintiff’s dismissal was published in a printed monthly circular addressed to the employers. The ground of his dismissal was also stated. The court held that the occasion was privileged and that in the absence of any evidence of malice, no action would lie. Lord Esher went further to declare thus:
“I cannot imagine a case in which the reciprocal interest could be more clearer”
I cannot agree more and I cannot distinguish the facts of this case from the Hunt case (supra). The circulation of the allegedly defamatory material was restricted to parties within the employment circle of the 1st Appellant.
In the final analysis, the three issues having been resolved in favour of the Appellants I find that the appeal is meritorious and I accordingly allow it. The judgment of the lower court is set aside.
Parties are to bear their costs of this appeal.
Other Citations: (2009)LCN/3143(CA)
