Access Bank Plc V. Maryland Finance Company and Consultancy Service (2004)

LawGlobal-Hub Lead Judgment Report

PIUS OLAYIWOLA ADEREMI, J.C.A. 

The appeal here is against the judgment of the High Court of Lagos State, sitting in Lagos, delivered on the 16th of July, 1999.

Briefly, the facts of the case are as follows – the respondent who was the plaintiff before the court below had caused a writ of summons to be issued out against the appellant, who was the defendant in that court claiming the sum of N5,000,000.00 (five million naira) being damages for libellous endorsement by the defendant/appellant on a cheque issued by the plaintiff/respondent on the 25th day of November, 1992, in favour of Emotype Limited. Pleadings in terms of amended statement of claim (with leave), statement of defence and amended reply (with the leave of court) were filed and exchanged between the parties.

The case thereafter, proceeded to trial at the end of which written addresses were filed in the court upon the order of the trial Judge and exchanged between the parties. In a considered judgment delivered on the 16th of July, 1999, the trial Judge found for the plaintiff/respondent and awarded it N1,500,000.00 (one million, five hundred thousand naira) as damages plus N5,000.00 cost all against the defendant/appellant.

Being dissatisfied with the said judgment the defendant/appellant appealed against same upon a notice of appeal dated 21st July, 1999, which with the leave of court, was later amended. The amended notice of appeal which was filed on the 12th of June, 2002, carries four grounds of appeal. Distilled from the afore-mentioned grounds of appeal, for determination by this court are four issues. As set out in the appellant’s brief of argument, the issues are in the following terms:-
(1) From the evidence and in particular, exhibit B (cheque for N2,000.00). Whether evidence adduced as to the date the defamatory word DAR was written, is at variance with pleadings.
(2) Whether evidence of personal malice by PW1 who is not a party to the suit could be substituted for malice against the plaintiff and whether evidence of malice was proved by the plaintiff.
(3) Whether the Lagos High Court (Civil Procedure) Rules, 1994 provide for a defendant to serve a reply to the plaintiff’s reply to a defence.
(4) Whether the sum of N1,500,000.00 awarded as damages is excessive.

For their part, the respondent raised two issues for determination as contained in its brief of argument, they are as follows:-
(1) Whether the learned trial Judge was right in holding that the plaintiff was defamed by the defendant and that the defamatory substance was actuated by malice.
(2) Whether the amount of damages awarded by the learned trial Judge was excessive in the circumstance.

When this appeal came before us on the 1st of March, 2004, Mr. Fadahunsi, learned Counsel for the appellant, adopted his client’s brief of argument filed on 6th December, 2001. On issue No.2 formulated on behalf of his client, he cited Gatley on Libel and Slander, 8th Edition, Chapter 21, section 1, General Principles, paragraph 921 at page 959, paragraph 959 at page 415 and section 12 from paragraph 963, section 3, Bills of Exchange Act, Cap. 35, Laws of the Federation of Nigeria, 1990 and Union Bank of Nigeria, Plc. v. Okubama (2000) 14 NWLR (Pt. 688) 570 at 574. He urged that the appeal be allowed. Chief Ajayi, SAN learned Counsel for the respondent adopted his client’s brief of argument filed on 1st November, 2002; he submitted that none of the issues raised by the appellant challenged the decision of the trial Judge that the endorsement was libellous; he urged that the appeal be dismissed.

I have had a careful examination of the issues raised by both sides, I am clear in my mind that those issues raised by the respondent are very much germane to this appeal. In the consideration of this appeal, I shall be guided mainly by the said two issues of course, without prejudice to consideration being given to the four issues of the appellant. Issues Nos. 1 and 2 on the appellant’s brief are both materially similar to issue No.1 on the respondent’s brief; I shall take them together. Issue No.4 on the appellant’s brief is also materially similar to issue No.2 on the respondent’s brief; I shall take both together.

I have read very carefully issue No.3 raised by the appellant, I cannot see any relationship between it and any of the grounds of appeal on the amended notice of appeal. In case I am held to be wrong on this view, I shall, in this judgment, treat that issue last.

On issue No.1 the appellant has contended in its brief that the evidence of the date of the return of the cheque which is the foundation of the action, and the date pleaded are at variance; this is fatal to the suit, it was further argued. The denial of the date the said defamatory words were written resulted in an issue being joined and the evidence which is at variance with the pleadings, as in the instant case, goes to no issue; reliance was placed on the decisions in West African Chemical Co. Ltd. v. Caroline Poultry Farm Ltd. (2002) 2 NWLR (Pt. 644) 495. There was no evidence of malice adduced by the plaintiff/respondent as affecting him personally.

The isolated consideration of exhibit A – the cheque – to the exclusion of exhibit B – the statement of account is wrong in law, it was further contended while further submitting that all the paragraphs of the pleadings must be considered and not treated in isolation; support was found for this submission in the decision in Titiloye v. Olupo (1991) 7 NWLR (Pt. 205) 519. The respondent, in rebuttal of the stand point of the appellant submitted that the plea of the plaintiff/ respondent as to malice was not rebutted by the defendant/appellant in its pleading neither was there evidence to contradict it; the allegation of malice, it was further submitted, was admitted by the defendant/appellant. Finally, on this issue, the respondent, submitted that the letters ‘DAR’ were libellous of the plaintiff/respondent in the way of its business and the judgment of the court below should be affirmed.

I shall begin the treatment of issues Nos. 1 and 2 on the appellant’s brief of argument together with issue No. 1 on the respondent’s brief by saying that in an action for defamation the published words complained of must be read together and the trial Judge before whom the case is being tried must in the first instance, in compliance with the dictates of the law rule whether the words in question are capable of carrying a defamatory meaning at all. If the words are, by the judgment of the trial Judge not found to be defamatory of the plaintiff, the trial Judge will pronounce his verdict and there and then terminate the proceedings, see (1) Kolo v. Mid West Newspaper Corp. (1977) 11 NSCC 11 (2) Awoniyi v. The Registered Trustees of Amore (1990) 6 NWLR (Pt. 154) 42 and (3) Katto v. C.B.N. (1999) 6 NWLR (Pt. 607) 390.

An examination of the pleadings exchanged between the parties leaves me in no doubt that both the plaintiff/respondent and the defendant/appellant are one that the appellant endorsed the letters ‘D.A.R’ on the plaintiff/respondent’s cheque for N2,000.00 drawn on the defendant/appellant who are plaintiff’s bankers.

Again, both of them are ad idem that the letters D.A.R. when translated mean ‘drawer’s attention required.’ It is my view that the argument of the appellant that because there is a conflict in the evidence as to the date when the cheque in question was returned and the date pleaded, and therefore that might be fatal to the case of the plaintiff/appellant, is not relevant to the consideration of the main issue in this appeal. In fact, it over simplifies the crucial issue in contention.