Zenith Plastics Industry Ltd. V. Samotech Limited (2007)
LawGlobal-Hub Lead Judgment Report
RHODES-VIVOUR, J.C.A.
In the High Court of Rivers State holden at Port Harcourt in suit No. PHC/4/97 the plaintiff, now the respondent claimed as per his paragraph 30 of the statement of claim against the defendant, the appellant herein as follows:-
“30. Wherefore the plaintiff claims against the defendant as follows:-
(a) N502,400 being balance outstanding against the defendant in respect of electrical work carried out on its behalf by the plaintiff in September 1995 and July 1996.
(b) N1.9 million being damages and losses plaintiff suffered by reason of the defendant’s failure to pay the contract price as and when due.
(c) N20 million general damages for breach of contract and libel of the plaintiff by the defendant.
(d) 25% interest per annum on the total sum of N22,402,400 from December 1996 until judgment is delivered in the matter and thereafter 25% interest per annum thereon until full payment thereof is made.”
The Facts
The plaintiff and the defendant entered into a contract for the plaintiff to construct an 11 KVA electric power line. The cost of the contract was N1,405,500 (one million, four hundred and five thousand five hundred naira).
The plaintiff completed the construction of the 11 KVA electric power line in September 1995 and demanded payment. The defendant did not pay the debt.
In July 1996, the defendant and its neighbour, Belhope Plastics Ltd. gave the plaintiff a contract jointly. The contract sum was N193,000 (one hundred and ninety three thousand naira). On completion of the contract Belhope Plastics Ltd. paid its own share of N96,500, while the defendant did not pay its own share of N96,500 despite demands for payment by the plaintiff.
The defendant’s indebtedness to the plaintiff stood at N1,502,400 (One million five hundred and two thousand four hundred naira) made up of N1,405,500 on the 11 KVA contract and N96,500 on the contract shared with Belhope Plastics Ltd. Union Bank Plc (the plaintiff bankers) stopped all credit facilities to the plaintiff, and this affected the execution of plaintiff’s Shell contract which Shell terminated and which the plaintiff says caused him a loss of N1.9m.
Due to mounting pressure on the plaintiff from its bankers Union Bank Plc to pay up the loans advanced to it to perform the contracts, the plaintiff authorized the defendant to pay its debt directly to Union Bank Plc. The authorization was an irrevocable authority. See exhibit B. On receipt of exhibit B, Union Bank Plc wrote to the defendant to make confidential inquiry about the plaintiff and to confirm the authenticity of exhibit B. The defendant replied Union Bank Plc. See exhibit C. It reads in part.
” … we wish to emphasize that this company has no business relationship whatsoever with Samo Tech Ltd. Therefore Samo Tech. Ltd. irrevocable authority letter dated 19/7/96 should be regarded null and void, we disassociate ourselves from any transaction/s that may exist between your bank and Samo Tech Ltd.”
After exhibit C the defendant paid the plaintiff N1 million. This payment left outstanding balance of N502,500.
After due trial on the plaintiff’s statement of claim, the defendant’s further amended statement of defence, and the reply to statement of defence, the learned trial Judge E.N.T. Ebete, J. handed down his judgment on 25/3/04 in favour of the plaintiff against the defendant. The concluding part of the judgment reads:
” … In the event, it is the view of the court that the plaintiff has proved that the defendant owes it the sum of N502,000 being the outstanding balance unpaid for the contracts it awarded to the plaintiff and the sum of N1.9 million being the amount sustained as a loss for the termination of the contract awarded to it as shown in exhibit C. The plaintiff is also entitled to the sum of N10,000,000 (Ten million naira) as general damages for the breach of contract and Libel of the plaintiff by the defendant … ”
Dissatisfied with the decision of the trial High Court, the appellant appealed to this court. By his notice of appeal, the appellant formulated five grounds of appeal, and by leave of this court, a further six grounds of appeal were filed.
Seven issues were distilled from the eleven grounds of appeal. They read:
Issue 1.
Whether it was not wrong for the learned trial Judge to have held that the plaintiff has proved that the defendant owes it the sum of N502,000 (five hundred and two thousand naira) being the outstanding balance unpaid for the contract it awarded to the plaintiff when the plaintiff has not proffered credible evidence to that effect.
Issue 2.
Whether the learned trial Judge was not wrong in awarding the sum of N1.9 million in the form of special damages in favour of the plaintiff/respondent in respect of a different contract which has no nexus with the contract in question and which loss does not flow naturally and directly from the alleged breach and when the special damages was not particularized and strictly proved by the plaintiff/respondent.
Issue 3.
Whether it was not wrong for the learned trial Judge to order the defendant/appellant to pay N10 million general damages to the plaintiff/respondent for breach of contract and libel after it has already ordered the specific performance of the same contract i.e. by ordering the defendant/appellant to pay the sum of N502,000 to the plaintiff/respondent being the balance of the contract sum of N1,502.000.
Issue 4.
Whether it was not wrong for the learned trial Judge to award the sum of N10 million as general damages against the defendant/appellant for both breach of contract and libel at the same time without specifying or categorizing separately the award for the breach of contract and the award for the libel when none of the two causes of action was proved by the plaintiff/respondent.
Issue 5.
Whether it was not wrong for the learned trial Judge to has awarded general damages for libel in favour of the plaintiff/respondent, without first of all, making a finding as to whether or not the extraordinary defamatory imputations alleged by the plaintiff/respondent were capable of such imputations and if they were, whether they were in fact defamatory of the plaintiff/respondent and whether there was proof of libel having regards to the evidence before the court.
Issue 6.
Whether it was not an award of double compensation in favour of the plaintiff/respondent when after awarding the sum of N1.9 million to the plaintiff/respondent as the damages and losses he sustained for the breach of contract, the learned trial Judge still went ahead to award in favour of the plaintiff/respondent another sum of N10 million as damages for breach of the same contract and libel.
Issue 7.
Whether the proceedings in the trial High Court and the judgment thereof are not a nullity having regard to the fact that the plaintiff/respondent is not a legal personality having the capacity to sue and be sued. For the respondent, two issues were formulated for determination of the appeal. They are:
Issue 1.
Whether the trial court was justified by the available evidence to make the various monetary awards it made in favour of the respondent in this suit.
Issue 2.
Whether the contents of exhibit C are defamatory of the respondent given the circumstances in which exhibit C was made by the appellant.
There are in the respondent’s brief some preliminary skirmishing which I ought to comment on before I go on to deciding the issues that will be considered for the determination of the appeal.
In the opening paragraphs of the respondent’s brief, learned counsel for the respondent argued that the notice and grounds of appeal and the additional grounds of appeal are in breach of Order 3 rule 2(3) of the Court of Appeal Rules in that the grounds and numerous issues formulated therefrom are incompetent and ought to be struck out.
He observed that issues 3, 4 and 6 are materially the same and they repeat the same question three times further observing that issues 1, 4, 5 are mere repetition of the same questions. Turning to the grounds of appeal, learned counsel observed that there is unnecessary repetition in that ground 1 in the notice and ground of appeal and ground 6 of the additional grounds of appeal are the same. Ground 2 of the notice and ground of appeal and ground 5 of the additional grounds of appeal are saying the same thing in different ways.
Learned counsel for the appellant did not file a reply to enable him respond to the above submissions. Not filing a reply brief or responding to the above submissions is in no way fatal. This is so because the court has the power suo motu to strike out incompetent grounds of appeal. See Order 3 rule 2(2), (3) and (4) of the Court of Appeal Rules.
In exercising this power, the court is expected to exercise its discretion judicially and judiciously. That is to say, exercise of discretion with sufficient, correct and convincing reason.
A ground of appeal is incompetent when the other side is left in doubt and without adequate information as to what the appellant is complaining about. See Aderounmu v. Olowu (2000) 2 SCNJ p. 180, (2000) 4 NWLR (Pt. 652) 253; Umoh v. Industrial Training Governing Council (2001) 4 NWLR (Pt. 703) p. 281.
A ground of appeal is not incompetent if it is framed as an error and misdirection or repetitive and rather prolix as these grounds are.
In deciding the issues to be considered for the determination of this appeal, the repetitive and prolix nature of the appellant’s issues shall be taken into consideration. I must observe though that the seven issues presented by the appellant were formulated from grounds 1, 2, 4, 5, 6, 7, 8, 9, 10, 11. That is to say that no issue was formulated from ground 3.
Where no issue is formulated from a ground of appeal such ground of appeal is deemed to have been abandoned and should be struck out. See Iyaji v. Eyigebe (1987) 3 NWLR (Pt. 61) p. 523: Western Steel Works v. Iron & Steel Workers Union (No.2) (1987) 1 NWLR (Pt. 49) p. 284; Obasi v. Omvnka (1987) 3 NWLR (Pt. 61) p.364.
As no issue was formulated in respect of ground 3, it is hereby struck out as it has been abandoned by the appellant.
I now turn to examine the issues formulated by both sides to see if there would be the need for me to formulate issues. Indeed, the Court of Appeal has the power to adopt or even formulate issues that in its view would determine the real complaint in the appeal. See Aduku v. Adejoh (1994) 5 NWLR (Pt. 346) p. 582; Ikegwuoha v. Ohawuchi (1996) 3 NWLR (Pt. 435) p. 146.
I have carefully looked at the panies, issues raised in this appeal. In deciding the issues relevant to this appeal I restrict myself to the following:
(a) Jurisdiction Appellant’s issue No. 7
(b) Outstanding debt Appellant’s issue No. 1
(c) Loss of anticipated profit. Appellant’s issue No. 2
(d) Double compensation damages. Issue No. 6
(e) Libel. Respondent’s issue No.2.
The issues for determination now read:
Issue No. 1.
Whether the proceedings in the trial High Court and the judgment thereof are not a nullity having regard to the fact that the plaintiff/respondent is not a legal personality having the capacity to sue and be sued.
Issue No.2.
Whether it was not wrong for the learned trial Judge to have held that the plaintiff has proved that the defendant owes it the sum of N502,000 (Five hundred and two thousand naira) being the outstanding balance unpaid for the contract, it awarded to the plaintiff when the plaintiff has not proffered credible evidence to that effect.
Issue No.3.
Whether the learned trial Judge was not wrong in awarding the sum of N1.9 million in the form of special damages in favour of the plaintiff/respondent, in respect of a different contract which has no nexus with the contract in question and which loss does not flow naturally and directly from the alleged breach and when the special damages was not particularized and strictly proved by the plaintiff/respondent.
Issue No.4.
Whether it was not an award of double compensation in favour of the plaintiff/respondent, after awarding the sum of N1.9 million to the plaintiff/respondent as the damages and losses he sustained for the breach of contract. the learned trial Judge still went ahead to award in favour of the plaintiff/respondent another sum of N10 million as damages for breach of the same contract and libel.
Issue No.5.
Whether the contents of exhibit C are defamatory of the respondent, given the circumstances in which exhibit C was made by the appellant. On issue No. 1, learned counsel for the appellant submitted that the judgment of the court below is a nullity because the respondent is not a legal personality capable of suing and being sued. Relying on Shitta Bey v. A.-G., Federation (1998) 10 NWLR (Pt. 570) 392: Bank of Baroda v. Iyalabani Co. Ltd. (2002) 13 NWLR (Pt. 785) p. 551.
He observed that there is evidence before the Court of Appeal that the respondent is not a registered entity. He urged us to set aside the judgment of the trial court.
The respondent’s counsel on the other hand submitted that the legal status of the respondent was not raised at the trial court, observing that the status was an admitted fact at the trial. He contended that it cannot be relitigated.
Jurisdiction is so fundamental that absence of it renders the entire proceedings a nullity, no matter how well the case was decided. See Madukolu v. Nkemdilim (1962) 1 All NLR 587, (1962) 2 SCNLR 341; Okoya v. Santili (1990) 2 NWLR (Pt. 131) 172; Ezenwosu v. Ngonadi (1988) 3 NWLR (Pt. 81) p. 163.
Jurisdiction can be raised on appeal for the first time informally, although it is desirable some process is filed so that the adverse party is not taken by surprise.
It is so important that it can be raised at any time, at the trial court, on appeal and even, for the first time at the Supreme Court. See Usman Dan Fodio University v. Kraus Thompson Organization Ltd. (2001) 15 NWLR (Pt. 736) p. 305.
Since the issue of jurisdiction is threshold, it is expedient that it is disposed of first. The only issue that can be taken, or should be taken and resolved before considering jurisdiction is representation of counsel. In this case that is not an issue.
The issue is whether the respondent/plaintiff is a juristic person. This is an objection to the competence of the respondent. That is to say, whether the respondent is a proper person either natural or legal to institute an action. This is an objection to the jurisdiction of the court to hear a case where one of the parties, in this case is alleged to be a non-existent person. It is well settled that a non-existent or dead person cannot sue. See Nigerian Nurses Association v. A.-G., Fed. (1981) 11-12 SC p. 1; Anyebe v. State (1986) 1 SC p. 87: (1986) 1 NWLR (Pt. 14) 39.
Actions in court can only be brought by natural or legal persons. As regards the latter, the legal persons under the name by which it sues or is sued and examples are corporation sole, corporation aggregate, incorporated by special Act of the Legislature or under the Companies Act, bodies incorporated by foreign law. Partnerships trade unions and friendly societies. Foreign institutions authorized by their own law to sue and be sued but not incorporated. See Carlen (Nig.) Ltd. v. University of Jos (1994) 1 NWLR (Pt. 323) p. 631: Fawehinmi v. NBA (No. 2) (1989) 2 NWLR (Pt. 105) p. 558.
In Bank of Baroda v. Iyalabani Co. Lid. (2002) 13 NWLR (Pt. 785) p. 551. The Supreme Court said that:
“where a plaintiff sued in what appeared to be its corporate name and has described itself simply as “the plaintiff’s in the statement of claim, it cannot be said that the writ or statement of claim shows a lack of legal personality on the face of it even though it is open to the defendant to challenge the juristic personality of the plaintiff. Where that is done, an issue to be tried would have arisen. That issue should not be determined on the basis of mere speculation or assumptions.”
It is mandatory that the plaintiff avers to its legal capacity. The onus of proving that he has legal capacity to institute an action lies on the plaintiff. It is thus not enough for the plaintiff just to add ‘”Ltd.” or “Plc” to its name. Its status must be proved during trial by tendering its certificate of incorporation or such other evidence that would show beyond doubt the juristic personality of the party concerned. Proving its juristic personality would no longer be necessary where the juristic personality of the plaintiff is admitted by the defendant. See Registered Trustees of Apostolic Church v. Attorney-General Mid Western State (1972) 7 NSCC p. 247: A.C.B. Plc v. Emostrade Ltd. (2002) 8 NWLR (Pt. 770) p. 501.
Now, to the pleadings. In paragraph 1 of the statement of claim the plaintiff says that it is a limited liability company and it describes itself on the writ of summons and indeed on all processes as Samo Tech Limited.
In paragraph 2 of the further amended statement of defence, the defendant admits that the plaintiff is a limited liability company. The defendant admitted that the plaintiff is a limited liability company. Facts admitted no longer require any further evidence in proof. See Bello v. Partners Supply Co. Ltd. (1998) 10 NWLR (Pt.568) p. 64. Section 75 of the Evidence Act.
My Lords, an admission clearly and unequivocally made as in this case is the best evidence. though not conclusive. It shifts the onus on to the maker. The defendants, the maker says in his brief of argument that the admission was erroneously made and that there is evidence before the Court of Appeal that the plaintiff is not a registered entity. That the defendant erroneously admitted that the plaintiff is a limited liability company is not worthy of comment. An erroneous admission is unknown to law. As regards evidence before this court, no evidence was presented to justify the assertion. In the circumstances, the need by the plaintiff to prove its juristic admitted by the defendant.
I am satisfied that the plaintiff is a juristic person that can sue, since there is not a shred of evidence to dispute that fact. There would thus be no need to set aside the judgment of the trial court on this issue in the light of the fact that the plaintiff was and still is a competent party to bring the action to court.
On issue No.2, learned counsel for the appellant submitted that there is no credible evidence on the record to show that the appellant is indebted to the respondent in the sum of N502,400.
He observed that the additional work allegedly given to the respondent by the appellant in respect of II KVA line was based on oral contract contending that:
(a) No evidence was tendered at the trial court to show the cost of the contract,
(b) No evidence of consensus ad idem.
He was given that to maintain a valid contract, five ingredients to wit: offer, acceptance, consideration, intention to create legal relation and capacity to contract must be present. Reliance was placed on P.T.I. v. Uwamu (2001) 5 NWLR (Pt. 705) p. 112, submitting that these five ingredients are absent in the alleged oral contract and there is nothing to show that the parties agreed that the contract sum was N1,502.400. He submitted that once the respondent accepted N1 million in place of the alleged N1,502,400 the contract is discharged. Continuing his submissions, he observed that the claim for N502,400 is a claim for debt, a collateral claim for damages for breach of contract in the same cause of action cannot be made.
Concluding his submissions, he submitted that by virtue of section 4 of the Statute of Fraud. 1677 applicable in Eastern State of Nigeria, an oral contract is vitiated by absence of writing, it is not enforceable.
Responding, learned counsel for the respondent observed that there is clear evidence that the appellant is indebted to the respondent in the sum of N502,400. He contended that the payment of the sum of N1 million by the appellant the contract cannot be discharged since the respondent always made demands for N1.5 million. Reference was made to exhibits M and N. He submitted that the payment of N1 million by the appellant, exhibit E is clear admission by the appellant that there was a valid contract between the parties.
He submitted that the Statute of Fraud is not applicable to the facts of this case. He submitted that failure to deny the debt of N502,400 is an implied admission of its indebtedness. Reliance was placed on section 75 of the Evidence Act. Din. V. African Newspaper Ltd. (1990) 3 NWLR (Pt. 139) p. 392.
He urged us to hold that the appellant was indebted to the respondent in the sum of N502,400.
After reviewing evidence, the learned trial Judge concluded thus:
” … It is the view of the court that the plaintiff has proved that the defendant owes it the sum of N502,400 (five hundred and two thousand naira) …”
It has been said in a plethora of cases that if pleadings are to be of any value at all, parties must be held bound by them. See Oladunjoye V. Akinterinwa (2000) 4 SC (Pt. 1) p. 19, (2000) 6 NWLR (Pt. 659) 92; Anyanwu V. Iwuchukwu (2000) 12 SC (Pt. 11) p. 67, (2000) 15 NWLR (Pt. 692) 721; Owodunni v. Registered Trustees of C.C.C. (2000) 10 NWLR (Pt. 675) 315.
In paragraph 27 of the statement of claim the respondent as plaintiff averred as follows:
“27. Consequently, the plaintiff through its solicitors E.C.N. Igbokwe & Co. wrote to the defendant demanding the balance of N502,400 on the contract sum and N20 million damages for the libel contained in the defendant’s letter to Union Bank Plc dated 13/9/96.”
Paragraph 26 of the appellant’s further amended statement of defence reads:
“26. Paragraph 27 of the statement of claim is admitted.”
Section 75 of the Evidence Act provides that facts admitted need not be proved. See Ugo v. Obiekwe (1989) 1 NWLR (Pt. 99) p. 566: N.E.P.A. v. El-Fandi (1986) 3 NWLR (Pt. 32) p. 884: Utteh v. State (1992) 2 NWLR (Pt. 223) p. 257; Din. v. African Newspapers Ltd. (1990) 3 NWLR (Pt. 139) p. 392.
An admission in pleadings is receivable against the maker as a waiver of proof. That is to say as a waiver of all controversy. No proof of the admission is required.
In this case, the fact that the appellant is indebted to the respondent in the sum of N502,400, representing balance on the contract sum of N1,502,400 has been admitted by the appellant. The learned trial Judge was therefore right to hold that the appellant is indebted to the respondent for the said amount of money. Courts of law are to determine live issues and not be engaged or indulged in academic exercise. See Bamgboye v. Unilorin (1999) 10 NWLR (Pt. 622) p. 290: Oyeneye v. Odugbesan (1972) 4 SC p. 244; Bakare v. A.C.B. Ltd. (1986) 3 NWLR (Pt. 26) p. 47; Obi-Odu v. Duke (No.2) (2005) 10 NWLR (Pt. 932) p. 105.
It would amount to an academic exercise to spend precious judicial time sifting through evidence, oral and documentary to see whether the appellant is indebted to the respondent in the sum of N502,400, when the appellant has admitted that fact.
All submissions of the appellant’s learned counsel denying its indebtedness to the respondent, fades into insignificance in the light of clear admissions by the appellant in paragraph 26 of its pleadings.
On issue 3, learned counsel observed that the learned trial Judge awarded the respondent the sum of N1.9 million as special damages, observing that the learned trial Judge was wrong when he held that the Shell contract was terminated because the appellant wrote exhibit C.
He submitted that the respondent failed to establish the loss of profit of N1.9 million and that it ought to have been expressly pleaded and strictly proved.
Relying on UBA Ltd. v. Ademuyiwa (1999) 11 NWLR (Pt. 628) p. 570: Badmus v. Abegunde (1999) 11 NWLR (Pt. 627) p. 493.
He submitted that the trial Judge erroneously awarded the sum of N1.9 million to the respondent when no evidence was led to prove it. He urged us to set aside the award.
Learned counsel for the respondent submitted that where a claim for specific damages was not challenged both in the pleadings and in evidence and the said evidence was supported by pleading and the nature of the evidence is credible, then the trial court has no option but to accept and act on it. Reliance was placed on Bello v. Eweka (1981) 1 SC p. 101: N.B.C. Plc. v. Borgundu (1999) 2 NWLR (Pt. 591) p. 408.
He submitted that the learned trial Judge was right to award the sum of N1.9 million to the respondent.
On the award of N1.9 million to the respondent, this is what the learned trial Judge had to say: “Plaintiff through PW1 gave evidence that the contract it lost was to the value of N1.9 million and that was due to the fact that the Union Bank withdrew the financial facility granted to PW1 owing to the fact that the defendant wrote exhibit C to the bank. The plaintiff tendered exhibit A to show that Shell terminated the contract sum of N1.9 million it awarded to it. I disgrace with the submission of the defendant that the plaintiff did not prove the amount of the contract awarded to it by Shell: the court is satisfied that this has been proved.”
The learned trial Judge then proceeded to award to the respondent the sum of N1.9 million which His Lordship described as:
‘The amount sustained as a loss for the termination of the contract awarded to it as shown in exhibit c.” See page 118 of the record of appeal.
Paragraphs 15, 16 and 17 of the statement of claim are the respondent’s pleading on the issue of N1.9 million. They read:
“15 Due to the stoppage of the credit facility plaintiffs’ source of capital was strangulated. Consequently, plaintiff’s ability to undertake large contracts was destroyed.
16. A direct consequence of the plaintiff’s financial predicament was the canceling of a N2.7 million contract it had with Shell Petroleum Development Company Limited in May 1996. Plaintiff hereby pleads the Shell letter of 15th May, 1996.
17. Plaintiff would have made a profit of N1.9 million if it had been able to borrow money to complete the said contract. Plaintiff made similar profit in a similar contract it undertook for Shell. It shall lead evidence thereon,”
In response, the appellant averred in paragraph 13 of the further amended statement of defence as follows:
“13. Paragraphs 13, 14, 15, 16 and 17 of the statement of claim are denied and the plaintiff will be put to the strictest proof thereof. In further answer thereto, the defendant states that it was not a party to nor did it acquiesce in the plaintiff arranging credit facilities from Union Bank Plc nor is it a party to the stoppage of the purported credit facility by Union Bank Plc nor was the defendant company contributory thereto,”
Paragraphs 15, 16 and 17 of the respondent’s pleadings says that had the appellant paid up it indebtedness to the respondent, Union Bank (the respondent’s bankers)
(a) would not have stopped credit facilities to the respondent.
(b) the respondent would have been able to perform the Shell contract (exhibit A) and make a profit of N1.9 million.
The respondent claim for N1.9 million is thus a claim for anticipated profits. In paragraph 13 of the further amended statement of defence, the appellant joins issues with the respondent denying that the plaintiff would/could make N1.9 million.
The claim for loss of profit or anticipated profits represents a loss which has crystallized into special damage which in effect is pecuniary losses which must be strictly proved. See West African Shipping Agency (Nig.) Ltd. v. Musa Kalla (1978) 3 S.C. p. 21; Ijebu Ode L.G. v. Adedeji Falogun & Co. (1991) 1 NWLR (Pt. 166) p.136; UEA Plc v. BTL Ind. Ltd. (2004) 18 NWLR (Pt. 904) p. 180; UBA Plc v. BTL Ind. Ltd. (2006) 19 NWLR (Pt. 1013) p. 61.
In paragraph 17 of the statement of claim, the respondent averred that it made a similar profit of N1.9 million in a contract it undertook for Shell.
In oral testimony on oath all that PW1 said was:
” … We were expecting to have a profit of N1.9 million from the terminated contract (see page 46 of the record of appeal). And on page 48 of the record of appeal PW1 continues:
“We are to get a profit of N1.9 million From the contract awarded to us by Shell which contract was terminate (sic) because the defendant refused to pay us our money ..”
PW2 the only other witness for the respondent did not say anything about the claim for N1.9 million. The issue is whether the testimony of PW1 is good enough to justify an award of N1.9 million.
My Lords, even in an undefended case, the court is still entitled to be satisfied that the evidence adduced is credible and sufficient to sustain the claim See Atilade v. Atilade (1968) 1 ANLR p. 27.
All that PW 1 has said is that the respondent is to get N1.9 million from the contract. There were no materials on which to base the award of N 1.9 million. There was no proof to justify the award. No evidence was led to support the pleading that the respondent made similar profit.
Since the respondent did not establish the loss claimed it was not entitled to the sum of N1.9 million awarded or to any sum.
Nowhere in exhibit A is it stated the amount/worth of the contract Shell terminated, consequently. it would amount to speculation to say that if the contract was not terminated the respondent would have made N1.9 million.
In the circumstances, there was no compelling evidence, oral or documentary to justify any award for loss of profit or anticipated profit. The findings of the learned trial Judge awarding N1.9 million to the respondent are in the realm of speculation.
Learned counsel for the appellant submitted that the award of N10 million general damages as both damages for breach of contract and libel after awarding the damages of N1.9 million in favour of the respondent in respect of the same cause of action amounts to double compensation. He observed that a party who has been fully compensated under one head of damages for a particular injury cannot be awarded damages in respect of the same injury under another head. Reference was made to Artra Ind. Ltd. v. N.B.C.I. (1997) 1 NWLR (Pt. 483) P.574.
He urged us to set aside the award of N10 million made in favour of the respondent.
Responding learned counsel for the respondent observed that the award of N10 million was based on the finding of the trial court that exhibit C was libelous, contending that the court did not award the sum of N10 million as general damages for breach of contract because the court not make any such finding throughout his judgment.
He submitted that the use of general damages in relation to breach of contract by the court below is a mere error that has no influence on the reasoning and judgment of the court. He further submitted that the award of N10 million is in respect of libel alone.
The respondent’s action against the appellant in the trial court was for
(a) Debt – N502.400.
(b) Loss of profit – N 1.9 million.
(c) Damages for breach of contract and libel.
There is no breach of contract in this suit. Notwithstanding that fact the learned trial Judge concluded thus:
“… N10,000,000 (Ten million Naira) as general damages for the breach of contract and libel of the plaintiff by the defendant See page 118 of the record of appeal.
In Armels Transport v. Transco (Nig.) Ltd. (1974) 11 SC p. 237.
The Supreme Court stated that the rule against double compensation prevents a party from claiming under two heads using different names. Consequently, once a litigant is well compensated under one head of damages he should not be awarded damages under another head, and so an award of damages based on double compensation to a plaintiff/complainant is erroneous in law and will not be allowed to stand. See Agaba v. Otobusin (1961) All NLR p. 299: (1961) 2 SCNLR 13.
I am satisfied that the judgment appealed against does not give double compensation in respect of the heads of claim and I hold that the award of damages for libel is not improper.
Learned counsel for the appellant submitted that the contents of exhibit C are not capable of conveying defamatory meaning, observing that it is not what the plaintiff thinks of the words but what the ordinary reasonable man in the street thinks of the words complained of. Reference was made to Yahaya v. Munchika (2000) 7 NWLR (Pt. 664) p. 300: Agbanelo v. U.B.N. Ltd. (2000) 7 NWLR (Pt. 666) p. 534.
He submitted that since the statement complained of does not reflect on the trading or business reputation of a corporation or company no action for defamation can lie. Reference was made to Edeni v. Orpheo (Nig.) Ltd. (2003) 13 NWLR (Pt. 838) p. 537.
Responding, learned counsel for the respondent submitted that the contents of exhibit C are defamatory when taken in their natural and ordinary meaning and in the circumstances in which it was written. Reliance was placed on Iloabachi v. Phillips & Ors. (2002) 14 NWLR (Pt. 787) p. 43.
He further submitted that all the requirements were met and so the trial court was justified to hold that exhibit C was defamatory of the respondent. Defamation is either libel or slander. It is libel where the words written are defamatory of the plaintiff/complainant in their natural meaning or by reason of innuendo.
It is slander where the words spoken are defamatory of the plaintiff/complainant in their natural meaning or by reason of innuendo.
In this case, the issue is whether the contents of exhibit C arc defamatory of the respondent.
To succeed in an action for libel, the party asserting must prove four ingredients. They are:
1. That the words were published to a third person.
2. That the words are defamatory of the plaintiff either in their natural meaning or by reason of an innuendo.
3. That the words referred to the plaintiff and are false.
4. That there is no justification for the publication.
Failure to establish anyone of the four ingredients is fatal to the plaintiff’s case. See Okolo v. Midwest Newspapers Corporation & Ors. (1977) NSCC p. 11: Okafor v. Ikeanyi & Ors. (1979) NSCC p.44: The Sketch Publishing Co. Ltd. v. Ajagbemokeferi (1989) 1 NWLR (Pt. 100) p. 678.
In an action for libel, the first step is to set out in the pleadings, the words complained of. The precise words of the document are material. That is to say, the words alleged to be libelous must be set out verbatim in the statement of claim. If the plaintiff complains of an article in a Newspaper, then the entire article must be reproduced in the statement of claim. If he complains of the whole publication then the whole publication must be reproduced in the statement of claim. This is the practice, clearly stated in D.D.S.A. Pharmaceuticals Ltd. v. Times Newspapers Ltd. (1973) 1 Q.B. p. 21 followed and adopted in Okafor v. Ikeanyi & Ors. (1979) NSCC p. 44. Explaining further Ihe ingredients of libel, the words must be published to a third person.
In this case, exhibit C was sent to Union Bank and in proof of its case the respondent called as its witness PW2 an official of Union Bank who read exhibit C. Failure to call an official of the bank would have been fatal to the respondent’s case.
In this case, the words in exhibit C are defamatory of the respondent in their natural meaning, and the words referred to the respondent.
Finally, there is/was no justification for writing and publishing exhibit C, the appellant was not remorseful. it did not plead any of the known defences, rather it remained defiant in its pleadings and during trial.
Finally, I must observe that the contents of exhibit C are false because soon after the appellant wrote exhibit C. it paid to the respondent the sum of N1 million in settlement of the debt. The publication to a third party of exhibit C. known to be false is very strong evidence of malice. See Payne v. Cole (1899) 1 N.L.R p. 24.
Now, anything written or printed which reflects on the character of another and is published without lawful justification or excuse is a libel. That is to say any publication which is calculated to lower a person in the estimation of right thinking people or cause him to be shunned or avoided, or to expose him to hatred, contempt, or ridicule, injure or prejudice the reputation of the person/plaintiff in his calling or office, or conveys an imputation of dishonesty, or an imputation disparaging him. See Adah v. Nwakor (1961) WNLR p. 193.
The law is settled that the question as to whether the words complained of are in their natural and ordinary meaning defamatory is a question of fact, and it is the effect the words have on persons who read them that constitute the libel.
The sole purpose of an action for libel is to vindicate the character of the person defamed.
The respondent is a limited liability company. It alleged that the contents of exhibit C are defamatory.
It is the law that a corporate body, i.e. a legal person could bring an action for libel if the defamatory matter is published against its business, or the management of it business or that the affairs of the company are conducted in a dishonest manner. In Iloabachie v. Phillips & Ors. (2000) 14 NWLR (Pt. 686) p. 43 at 56. Tabai, J.C.A (as he then was) said that:
“In the peculiar circumstances of this case, it is not convenient to determine whether or not the statements complained of are defamatory in their natural and ordinary meaning without taking into consideration the circumstances in which they were made and the person or persons to whom they were published.”
I must now take into consideration the circumstances in which exhibit C was made and published to see if its contents are defamatory in its natural and ordinary meaning.
The respondent did some work for the appellant. The appellant was indebted to the respondent in the sum of N1,502,400. for the work done. The respondent’s bankers, Union Bank stopped all credit to the respondent because of its mounting debts to the bank. that the respondent was unable to pay because the appellant never bothered to pay the sum of N1,502,400 due to the respondent. The respondent thought of a bright idea to restore his credit worthiness in the bank. It prepared an irrevocable authority exhibit B. Therein it authorized the appellant to pay all monies owed to it to Union Bank Plc. Orije Branch, Port Harcourt. The bank was very much aware of exhibit B. Now, what did the appellant do on receiving exhibit B. it wrote exhibit C. Exhibit C is addressed to the Branch Manager Union Bank Plc, Orije Branch, Port Harcourt and it is signed for the appellant it reads:
Irrevocable Authority
Samo Tech. Ltd.
We refer to your letter dated 24th July, 1996 on the above subject matter and wish to emphasize that this company has no business relationship whatsoever with Samo Tech. Ltd.
Therefore Samo Tech. Ltd. irrevocable authority letter dated 19/7/96 should be regarded null and void, we disassociate ourselves from any transaction(s) that may exist between your bank and Samo Tech Ltd.
On receipt of exhibit C, the bank wrote to the respondent.
Exhibit D. It reads in part:
“We refer to your irrevocable authority addressed to Zenith Plastics Industry Ltd. in connection with your banking facility and draw your attention that the said letter was not given a favourable consent as the company replied not to have any dealings with you as claimed. This unexpected situation is misleading, and has put the position of the bank in serious doubt against the premise upon which banker/customer relationship is built …”
Commenting on exhibit C, PW2, staff of Union Bank said on oath:
“… We have expressed doubt over our relationship with the plaintiff. Instead of advancing more funds to the plaintiff we are now calling for the amount already advanced to the plaintiff.”
The simple test is whether the contents of exhibit C will, or did injure or prejudice the reputation of the plaintiff.
On page 116 of the record of appeal, the learned trial Judge had this to say:
“I have been able to highlight above the circumstances in which the words of the defendants were published and I am satisfied that they were made in bad faith and so defamatory …”
I agree with the learned trial Judge, bearing in mind the circumstances in which exhibit C was written, any reasonable man would view the respondent with disgust, deceitful, untrustworthy, a trickster dishonest. The banker customer relationship was seriously disrupted. The respondent’s business nose-dived. The bank did not want to have any relationship with the respondent after it received exhibit C, except to collect and quickly too, all the money advanced to the respondent. Exhibit C is clearly defamatory of the respondent.
For the avoidance of doubt, the respondent is entitled to the following:
1. N502,400.00 (Five hundred and two thousand, four hundred naira).
2. N10,000,000.00 (Ten million naira). The appeal fails and it is accordingly dismissed there shall be order on costs.
The appeal fails and it is accordingly dismissed there shall be no order on costs.
Other Citations: (2007)LCN/2486(CA)
