African International Bank Limited & Ors V. Femi Asaolu (2005)

LawGlobal-Hub Lead Judgment Report

ISA AYO SALAMI, J.C.A.

The plaintiff caused to be indorsed on the writ of summons, dated 27th February, 1989, and filed on 1st March, 1989, as follows:

“The plaintiffs claims jointly and severally against the defendants the sum of one million, five hundred thousand Naira (N1,500,000.00) as damages for libel contained in information circular NO.704 dated 21/12/89 signed by the first and second defendants as servants or agents of the 1st defendant and circulated by the defendants among all the managers in the first defendant’s branches/area offices in Nigeria”.

The plaintiff’s amended statement of claim that eventually went to trial are at pages 60, 61, 62 and 63, which are mainly illegible. In that amended statement of claim,the claim was raised to N50,000,000.00. The learned trial Judge, after taking the evidence and addresses of counsel, in a reserved and considered judgment, gave judgment in favour of the plaintiff in these terms –

“Keeping Exh. D in circulation for II years against the order of the Managing Director is evidence of aggravated misconduct leading to aggravated damages. Entire conduct of the defendants from the time of publication of libel to the moment of the verdict.

For over 11 years the defendants remained unrepentant. They still persist and still maintain without sufficient ground that plaintiff was fraudulent. See the case of Ejabulor vs. Osha (1990) 5 NWLR (Pt.148) at p1 ratio 20.

The Court takes all these factors into consideration and award five (5) million Naira damages together with an injunction restraining the defendants from further publishing such information. Defendants are hereby ordered to withdraw exh.D from circulation. I shall hear counsel on costs.”

The defendants are dissatisfied with the outcome of the trial and being aggrieved have appealed to this court on five original grounds of appeal which were substituted by 7 grounds of appeal filed along with an amended notice of appeal on 11th November, 2003.

The plaintiff was unsatisfied with the quantum of damages made in his favour and has cross-appealed with leave of the court granted on 20th November, 2001. The notice of appeal was filed on 10th December, 2001. Briefs of argument have been filed and exchanged in respect of both appeals according to the practice and procedure of this court.

On 8th March, 2005, when this appeal was listed for hearing,this court observed as follows-

“It is observed that BCC1 which libelled the respondent has ceased to exist in Nigeria. Can a company incorporated in Nigeria to take over its operations be expected to inherit the liability of the former company?”

Learned Counsel who represented both parties on that day agreed to an adjournment to enable them address the court at a later date. Consequently, the hearing of the appeal was adjourned to 15th April, 2005. The matter was not taken on that day apparently because of the court’s inability to assemble the same panel. The appeal was, however, heard on 26th April, 2005.

On that day, learned Counsel for the appellants graciously directed the court to an attachment to an affidavit sworn to on the 22nd April, 2005. The attachment referred to was a certificate of incorporation which satisfactorily explained that there was no incorporation of a new company. Rather, the company formerly operating as Bank of Credit and Commerce International Nig. Ltd. merely changed its name to African International Bank Limited. Our fear on whether the defamatory publication which had been published and been in circulation for several years before the formation of the first appellant survived Bank of Credit and Commerce International. If there had been a new company, clearly the defamation would not have survived Bank of Credit and Commerce; since the former bank merely changed its name any action or liability against it before the change of names can be founded upon notwithstanding the change of name.

Thereafter, the hearing of the appeal got underway. Learned Counsel for appellants referred to an amended notice of appeal filed on 11/11/03 with leave of the court granting the appellant on 6th November, 2003,7 days within which to file the amended notice of appeal which was apparently complied with.