Afribank Nigeria Plc V. Sylvester Onyima & Anor (2003)

LawGlobal-Hub Lead Judgment Report

IFEYINWA CECILIA NZEAKO, J.C.A.

On 13th December, 1996, Heman J., sitting at the High Court of Justice Bauchi in Bauchi State, Nigeria, delivered judgment in a suit filed by the plaintiffs. In the suit, the plaintiffs who are now respondents in this appeal, claimed from two defendants, viz; the Commissioner of Police Bauchi State and the appellant herein, a Banking Institution, N5 million, being aggravated general damages for unlawful arrest and detention of the respondents and the sum of N2 million being general damages for defamation of the character of the 1st respondent, arising from the letter of the appellant, dated 14/9/95, alleging that the 1st respondent had fraudulently, overdrawn his account with the appellant/bank.

The claim was made against the defendants jointly and severally.
The 1st defendant/bank filed had exchanged pleadings with the plaintiffs, but the 2 defendant, the Commissioner of Police, though duly served, neither entered an appearance, nor filed a defence to the suit and never participated in the trial.

At the trial, the 2nd plaintiffs testified on their own behalf and after cross-examination, closed their case. The 1st defendant/bank did not lead evidence. They rested their case on the plaintiffs’ case.
The learned trial Judge delivered a considered judgment, finding the defendants liable jointly and severally. He awarded N250,000.00 for aggravated general damages for unlawful arrest and detention of the two plaintiffs and N50,000.00 general damages against the 1st defendant/bank for defamation of the character of the 1st plaintiff.

The 1st defendant/bank, dissatisfied, has appealed against the judgment on 4 grounds. The bank is the only appellant in this appeal.

For the appeal, learned Counsel for both parties have filed and exchanged briefs of argument as required by the rules of this court.

For the appellant/bank, the following 5 issues were formulated for determination in this appeal:
“(a) Whether by merely giving information to the police of suspected fraud, the appellant’s/bank area manager, could be held responsible for the consequent arrest and imprisonment of the plaintiffs (respondents) by the police.
(b) Whether there was any evidence of malice, or of any interference by any staff of the appellant with the police discretion to arrest and detain the plaintiffs, warrant the finding that the appellant was jointly and severally responsible for the arrest and imprisonment of the plaintiffs.
(c) Whether there was any evidence of aggravation of damages to warrant the award of N250,000.00 aggravated damages for wrongful arrest and detention.
(d) Whether, without setting out the full text of the alleged publication of the offensive part verbatim, the court could proceed to award general damages for alleged libel contained in the publication.
(e) Whether, considering the totality of evidence led, the N300,000.00 general damages awarded by the court is not excessive and reasonably disproportionate to the alleged injury suffered by the plaintiffs.”

The respondents’ issues formulated by their counsel are as follows:
“(i) Whether the High Court was justified in finding that the arrest and detention of the respondents by the police was through the instigation and instrumentality of the appellant/bank and that the bank did more than merely reporting a crime to the police.
(ii) Whether the award of N250,000.00 aggravated general damages against the appellant/bank and the Commissioner of Police Bauchi State, jointly and severally for wrongful arrest and detention was justifiably and reasonably made.
(iii) Whether the High Court was justified in awarding N50,000.00 general damages against the appellant/bank for libel having regard to the pleading and evidence produced before the court.”

At the hearing of the appeal, neither the parties nor their counsel were in court. As briefs had been filed and exchanged, the appeal was deemed argued based on the briefs. This accords with Order 6 rule 9(5) of the Court of Appeal Rules 2002.

I deem it appropriate to state here, that I had discovered two briefs of argument in the file, for the appellant, one filed on 22/7/99, by Suleiman Wurno Esq. and the other filed on 8/11/2002 by Mashood Sanusi Esq. There is absolutely nothing in the file to explain the duplication. There is no application withdrawing the earlier brief or for leave to file an amended brief or a new one out of time by another counsel, three years after the first one was filed.

The respondents’ brief was filed on 17/3/2000, in response to the 22/7/99 appellant’s brief.
I have, in the circumstances, decided to determine this appeal, based on the earlier brief filed on 22/7/99 by the appellant/bank.

The facts which set off the action at the court below, derived from the records can be summarized as follows:
The 1st respondent, a business man and his wife, the 2nd respondent herein, were residing at Dadin Kowa.

The said 1st respondent had been a current account I customer of the appellant/bank at its Dadin Kowa branch for about 10 years. The second respondent, a housewife, had no account or any relationship with the appellant/bank.
The said 1st respondent had been enjoying some over-draft facilities approved by the bank manager of the appellant’s Dadin Kowa branch. This, he testified he was repaying from the proceeds of his business on account of which he had secured the facilities.

Sometime in September, 1995, the 1st respondent received a letter, which surprised and disturbed him. It was dated 14/9/95 and addressed to him by the appellant/bank. In the letter, the appellant bank alleged that the 1st respondent had fraudulently overdrawn his account in the sum of N815,008.10, beyond his approved limit of N40,000.00. The letter was tendered at the trial and admitted in evidence as exhibit ‘A’.”