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.
It is true that the 1st PW Michael Adewale Kazeem said he paid on behalf of the plaintiff/respondent to a third party – Emotype Limited cheque for N2,000.00 on the 25th November, 1992, but he was surprised that the cheque was returned with a letter on 15/12/92; both the letter dated 15/12/92 and the cheque were tendered as exhibits A and A2 respectively.
DW1 – Adegboyega Onyekanmi, a Sub-manager Operations of the appellant said and I quote:-
“On 4/12/92 the balance on this account – N 1,216.02 on 7/12/92 – there was N344,877,53 on 4/12/92 – balance was 0783.00 credit … when we received N2,000.00 cheque on 4/12/92 in the account (sic) was in debit sum of N1,216.02. Since the balance cannot absolve the N2,000.00 the cheque for N2,000.00 was returned back to the clearing house… On that same 7/12/92 in the afternoon, another cheque for N344,103.55 was credited to the plaintiff’s account in the afternoon. On 8/12/92, there was N23,862.53 in the plaintiff’s account on the same 8/12/92, there was another cheque for N3,000.00; payable from the plaintiff and this was paid because there was enough fund in the account then … Exhibit A is the plaintiff’s cheque drawn on the defendant. It is marked ‘DAR’ meaning ‘drawers attention required”.
Under cross-examination, the witness said:-
“I know (sic) agree that exhibit A bore this stamp of our head office on 8/12/92 and not on 7/12/92. On 7/12/92, N344,103.52 was paid into the account of the plaintiff. N2,000.00 was deducted leaving N342,887.55 …there was sufficient fund in the account on 8/12/92.”
Going by the viva voce evidence of both parties and relating same to the pleadings, I cannot see how it can be properly said that the evidence of the plaintiff is at variance with its pleadings in any respect. As I have said, the main issue is whether the endorsement D.A.R. – which they both agree to mean drawer’s attention required – is libellous or not. This endorsement on cheque has been a subject-matter of judicial interpretations over a long time.
I shall now go into the judicial authorities to find out the meaning it has been subjected to both in foreign courts and in our own courts. For many years the banker could argue that his most common answer on dishonoured cheque ‘refer to drawer’ or ‘drawer’s attention required’ both of which materially mean the same thing, had no necessarily defamatory meaning.
In Flach v. London and South Western Bank Ltd. (1915) 31 T.L.R. 334, the plaintiff’s cheque was returned unpaid during the moratorium at the outbreak of the First World War. The bank succeeded in their first defence to her action against them, that they were proceeded by the terms of the moratorium; they also succeeded in their contention that the words ‘refer to drawer’ were not libellous. Scrutton, J. saying on this point that in his opinion, the words in their ordinary meaning amounted to a statement by the bank, ‘we are not paying; go back to the drawer and ask why’, or else, ‘go back to the drawer and ask him to pay’.
Again, when occasion arose, in England to construe these words in Plunkett & An. v. Barclays Bank Ltd. (1936) 1 A.E.R. 635, du Pareq, J. said at pages 659-660 and I quote him:-
“I have only to add that in the circumstances of this case the words ‘refer to drawer’ were, in my opinion, no libel. I respectfully adopt the language of Scrutton, J. as he then was in Flaca v. London and South- Western Bank Ltd. at page 336.
There the learned Judge said:-
‘The words ‘refer to drawer’ in his opinion, in then ordinary meaning, amounted to a statement by the bank ‘we are not paying; go back to the drawer and ask why’ or else ‘go back to the drawer and ask him to pay’.
In the view, he took of the case the bank were justified in not paying … and he did not think it was possible to extract a libellous meaning from what had been said by the bank.”
However, in 1950, the Irish Supreme Court changed the tenor of the construction placed by court on these words when in Pyke v. Hibernian Bank Ltd. (1950) LR 195, a case in which three cheques were wrongfully dishonoured with the answer ‘refer to drawer’, two of the cheques bearing also the word ‘represent”. A jury awarded N1 damages for breach of contract and N400.00 for libel. Suffice it to say that the Supreme Court of Ireland affirmed the verdict.
It seems to me that if the dishonour of the cheque is on the face of materials presented before the court is wrongful, the words, drawer; attention required’ or ‘refer to drawer’is endorsed on the cheque will be libellous. If, however, the dishonour based on the materials before the trial Judge is not found to be wrongful, those words can never be adjudged to be libellous.
This was the view expressed in Jayson v. Midland Bank Ltd. (1968) 1 Lloyd’91s Rep. 409, where the plaintiff claimed that the dishonour was wrongful and that ‘refer to drawer’ was libellous. The jury found that the words were (in the words of the question the Judge put to them) likely to lower the plaintiff”s reputation in the minds of right thinking people. However, this did not avail the plaintiff, because the jury found also that the dishonour was justified. The Court of Appeal (England) dismissed the plaintiff’91s appeal on that point. In the construction of the aforesaid words, our courts are not left out. In Dike v. African Continental Bank Ltd. (2000) 5 NWLR (Pt. 657) 441, this court (PortHarcourt Division) per the judgment of Ikongbeh, J.C.A. said at page 458:’97
“The words ‘Refer to Drawer’ have been interpreted to amount to a statement by the bank that “We are not paying, go back to the drawer and ask why” or else “Go back to the drawer and ask him to pay.” Neither of these statements paint a very good picture of a man of business. It does not inspire confidence in people who do business with him. That is why the courts regard it as actionable libel that attracts substantial damages without proof of actual damage
This is especially so, if the words have been used by the very person who unjustifiably placed his victim in a position where the words could be used on him.”
In modern days when good reputation is a scarce commodity among mankind possession of same by anybody is an invaluable asset which must be jealously guarded in the comity of good and virtuous people. I think that is why the courts over the years have moved from liberal interpretation of those words to a seemingly strict and hard construction. The tendency for a man to do evil is more prevalent nowadays, unlike in the good old days.
Let it be said that to be defamatory an imputation need have no actual effect on a person’s reputation; the law looks only to its tendency. Indeed, an imputation may be defamatory even though it does not tend to make others think worse of the person to whom it refers. If it would tend to cause others to shun or avoid him or to exclude him from the society of his fellow men or place him in a position where others would not want to enter into any business transaction with him; then the words cannot but be defamatory see (1) Youssaupoff v. Metro-Goldwyn Mayer (1934) 50 T.L.R. 587 and (2) Watkin v. Hall (1868) L.R. 3. Q.B. 399.
To return a cheque with the endorsement “drawer’s attention required”, in the present day, cannot but on the face of it be defamatory. The truth of such an endorsement, which will find expression in non-availability of funds in the account of the customer, will be a defence to any action founded on it. In the case at hand, from the available evidence given by both sides, there were funds in the account of the respondent at the time the cheque was presented. That endorsement is therefore defamatory and its imputation is one to the respondent’s discredit.
On the state of the pleadings and evidence led, the plaintiff/respondent need not prove malice against the defendant/appellant. Issues Nos. 1 and 2 on the appellant’s brief are therefore resolved against them. I answer issue No.1 on the respondent’s brief in the affirmative.
I shall now take on issue 4 on the appellant’s brief both of which pose the question as to whether the sum of N1,500,000.00 (one million, five hundred thousand naira) awarded as damages is excessive. The appellant has contended in its brief of argument that the amount awarded was excessive in the circumstances of this case; support for this submission was found in the decision in Offoboche v. Ogoja Local Govt. (2001) 16 NWLR (Pt.739) 458; (2001) 7 SCNJ 468.
On the other hand, the respondent having set out the principles the court should consider in determining whether an award is justified or not, submitted that having regard to the station in life of the respondent, the nature of the libel and the mode of the publication and of course the fact that the appellant has not shown any sign of remorse, the award is not excessive; indeed it was their submission that the award of N1,500,000.00 is inadequate; reliance was placed on the decision in Ejabulor v. Osha (1990) 5 NWLR (Pt. 148) 1.
As I have said, it is the assessment of the damages awarded that this court is now invited to examine. The principles are now well settled that appellate courts are always very reluctant to attempt to re-assess the amount of damages which the trial Judge has given; if however, an appellate court must embark on that exercise it must be seen I clearly to be that the trial Judge, in the course of assessing the damages, has proceeded upon wrong principles of law or that the award was clearly an erroneous estimate for the reason that the amount was manifestly too large or too small, see His Highness Uyo v. Egware (1974) 1 All NLR (Pt. 1) 293 and Newbreed Org. Ltd. v. Erhomosele (2002) 13 NWLR (Pt. 784) 251. I must however, not forget that it is the damages recoverable for dishonour of a cheque that is in question.
However generally, the law is that libel is actionable and proof of damages is unnecessary. The reason for the law on this point as it stands is not far-fetched. Libel is a civil wrong and the law implies general damages. In other words, once libel is proved there is a presumption of damages. The primary aim of damages is to place the plaintiff in as good a position as far as money can do it as of the matter complained of had not occurred.
The relationship between a banker and a customer is one of contract – but a contract with a difference. In a customer/banker the relationship that is constituted is that of the principal and agent. Thus, a cheque drawn on the banker by its customer is an order of the principal, in this case the customer, to his agent, the banker to payout the sum of the cheque, to the payee endorsed on the cheque. For the umpteenth time, I wish to say that the law is well settled that a refusal by a banker to pay a customer’s cheque when he holds in hand, by the reason of keeping the account of the customer, a sum of money equivalent to that endorsed on the cheque amounts to a breach of contract for which the bank is liable in damages see Balogun v. N.B.N. (1978) 3 SC 155; (1978) 11 N.S.C.C. 133. The measure of damages in an action against a banker for breach of contract to honour the cheque that has been drawn by a customer against his account would depend on the status or station in life of the customer. If the customer is not a trader and is unable to prove the actual damage he has sustained as a result of the wrongful refusal by the banker to pay the cheque all he is entitled to by way of an award is nominal damages, see Oyewole v. Standard Bank of West Africa (1968) 2 All NLR 32. It is however necessary for me to say also that in law, that if the plaintiff is able to prove that by the reason of the said breach he has suffered considerable damage to his reputation and generally to his business, the plaintiff will be entitled to special damages.
There is evidence, unchallenged and uncontradicted that the plaintiff/respondent was a financial consultant serving both government and corporate bodies to expedite loans to build the Gateway Hotel, Otta. In paragraph 7 of the amended statement of claim, the plaintiff/respondent averred:-
“The plaintiff has, in consequence been seriously injured in its character, credit, and reputation and in the way of its said business and has been brought into public scandal, odium and contempt and the plaintiff claims the sum of N10,000,000.00 (ten million naira being damages for libellous endorsement by the defendant on a cheque issued by the plaintiff on the 25th of November, 1992, on favour of Emotype Limited.”
I think it must be pointed out that a judex in making his award of damages should not be carried away; in fact, must now allow his mind to be affected by any high-sounding figure of money claimed. He must look at the whole case dispassionately and let his award be a proper and sober assessment of the entire case. Undoubtedly, the amount of N1,500,000.00 (one million, five hundred thousand naira) awarded is very much on the high side. It is excessive. Having so found, it is my view that the justice of this case will be met by an award of the sum of N750,000.00 (seven hundred and fifty thousand naira). Accordingly, the award of N1,500,000.00 by the court below is hereby set aside in its place I award N750,000.00.
I have read issue No.3 raised by the appellant; relating same to the grounds of appeal on the amended notice of appeal, it does not flow from it at all. It is non sequitur. It is thus, struck-out.
In the final analysis, subject to what I have said as to the damages awarded by the court below, which I have reduced to N750,000.00. It is my judgment that this appeal is unmeritorious. It must be dismissed and it is accordingly, dismissed subject to the award of damages, which is hereby reduced to N750,000.00. The respondent is entitled to the cost of this appeal which I assess and fix in their favour at N5,000.00.
Other Citations: (2004)LCN/1587(CA)