Mrs J.O. Akhigbe & Anor V. Mr. George Ashimedua (2002)

LawGlobal-Hub Lead Judgment Report

ROWLAND, J.C.A.

The respondent as plaintiff in suit No. EHC/363/95 claimed against the appellants as defendants as follows:-

“The plaintiff claims jointly and/or severally against the defendants, the sum of N2,500,000.00 (Two million, five hundred thousand naira only) being damages for defamation falsely and maliciously published to several persons within and outside Effurun in Delta State and far beyond by 1st defendant (for whose acts and/or omissions the 2nd defendant is vicariously liable) of and concerning the plaintiff in and contained in several letters (and also orally) particularly those of the 27th June, 1994; and 18th April, 1994 accusing the plaintiff of fraud and abuse of 2nd defendant’s Medical Scheme for employees”.

For a better understanding of this case, I consider it necessary to state the facts of it at this early stage. The respondent was a staff of the 2nd defendant (hereinafter called 2nd appellant) and at the material time, he was working at the Effurun branch of the 2nd appellant. The 1st defendant (hereinafter called 1st appellant) was the manager of the 2nd appellant, at its Effurun branch and in that capacity was responsible for the day to day running of the affairs of the 2nd appellant. The 2nd appellant has a medical scheme which allows for the medical treatment of staff of the 2nd appellant and dependants of not more than four. The 2nd appellant made rules and regulations regarding the utilisation of the said medical scheme so that employees do not abuse the scheme which will have the resultant effect of destroying the scheme and the 2nd appellant itself. One of such rules was the rule requiring employees to restrict themselves to two clinics out of a number of selected clinics. This was to ensure that individual employees expenses on medical bills was under control. The respondent, it was alleged regularly breached the laid down rules and in the result presented ridiculous medical bills in a regular basis claiming that both himself, wife and children were always sick. It was also alleged that the bills for a few months were usually several times over his annual salary.

This scenario went on for some time and in consequence therefore, the 2nd appellant issued queries to the respondent on the suspected abuse of the 2nd appellant’s medical scheme. The respondent was said to refuse to answer any of the queries which were issued to him. Instead, he engaged his solicitors to write a letter of demand to the appellants claiming that by the letter from the 2nd appellant to him, his reputation had been injured. The 2nd appellant later placed the respondent on suspension and subsequently dismissed him from its employment. In the meantime, the respondent went to court to claim N2,500,000.00 (Two million, five hundred thousand naira only) from the appellants by his writ of summons. Before the exchange of pleadings and after he had been dismissed from the services of the 2nd appellant, the respondent filed a motion seeking amongst other things the reliefs that the 2nd appellant should continue paying his salaries etc, during the period of his suspension when in actual fact he had been dismissed.

After hearing arguments on the motion, the learned Judge granted the two prayers on the motion paper even though it is manifest that the prayers were not rooted in the substantive suit and were not ancillary to it. Apart from granting the prayers on the motion paper, the learned Judge went ahead to nullify the dismissal of the respondent by the 2nd appellant even though the question of the legality of the respondent’s dismissal was not an issue before the court. It is by reason of this decision of the court below that the appellants filed this appeal on a number of grounds. From the grounds of appeal the appellants raised three issues for determination. They are:-

“1. Whether the learned trial Judge was right in granting the prayers on the motion paper when the application was not premised on the substantive suit before the court.

2. Whether having regard to the application before the court, it was right of the trial Judge to nullify the respondent’s dismissal from the employment of the 2nd applicant/appellant.
3. Whether having regard to the state of affidavit evidence before the court, the learned trial Judge rightly exercised his discretion in granting the prayers on the motion paper”.

The respondent identified two issues for determination in this appeal.

They are:

1. Whether the learned trial Judge rightly exercised his discretion, when he granted the prayers on the motion paper in view of the reliefs claimed in the writ of summons and statement of claim.
2. Whether the learned trial Judge pronouncement on the letter of dismissal of the respondent was proper in view of the prayers of the respondent on the motion paper.

In my view, from the facts of this case, issue numbers 1 and 2 at page 2 of the appellants’ brief go to the root of this matter, therefore, the determination of the said two issues one way or the other should take care of this appeal. I shall therefore treat this appeal in the light of the first two issues in the appellants’ brief.

For the appellants’ it was submitted that the respondent’s action against the appellants at the lower court was for the sum of N2,500,000.00 (Two million, five hundred thousand naira only) for an alleged defamation of his character arising from purported malicious publication of letters concerning the respondent by the appellants to several persons within and outside Effurun, Delta State and beyond. The claim of the respondent as endorsed on the writ of summons is contained at page 2 lines 1 -14 of the records. It was stated that in the action the respondent was seeking a vindication of his reputation and reparation for an alleged damage to the said reputation. It was contended that the respondent’s action had nothing to do with his dismissal by the 2nd appellant from it’s employment.

It was submitted that the parties joined issues as per the statement of claim and defence filed subsequently. It is the contention of the appellants that the fact that the action was simpliciter an action predicated on defamation and no more is clearly borne by the records.

See page 5 lines 13-18, pages 12 lines 32-37 and page 13 lines 9-19 of the records.

It was further submitted that the statement of claim filed by the respondent, also explicitly defined the action in court as being entirely grounded in defamation. It was argued that it was on this that the court below was to adjudicate before the interlocutory application was filed. See page 49 lines 10-35 which is paragraphs 8, 9 and 10 of the statement of claim. See also page 50 lines 1-8 of the records.