➥ CASE SUMMARY OF:
Stanbic IBTC Bank Plc v. Longterm Global Cap. Ltd, CRC Credit Bureau Ltd., Union Bank (September 20 2021, ca/l/1093/2017)
by Branham Chima.
➥ ISSUES RAISED
Exhaustion of internal remedies;
Fair hearing;
Injurious falsehood;
General damages.
➥ CASE FACT/HISTORY
The first respondent, a capital market financial institution, had a banker-customer relationship with the third respondent, a banking institution. On or about 2nd April, 2013, the first respondent applied to the third respondent for a term loan of N250 Million to enable to it purchase a prime property at Lekki Phase I, Lagos. The third respondent, in strict compliance with the Central Bank of Nigeria directive, conducted credit status checks, with the relevant bureaus, on the credit worthiness of the first respondent. On 23rd April, 2013, the third respondent wrote to the first respondent informing it of its inability to grant the term loan due to the unfavourable credit report made against it by the second respondent, a credit information bureau, which was electronically published in its data bank to the whole world including the third respondent. The third respondent further informed the first respondent that the appellant had reported to the second respondent, on 31st October, 2012, that the first respondent had unsecured overdraft facility that was classified as “lost’ as at 31st October, 2012. The first respondent viewed the Credit Status Report (CSC) as false and malicious. It alleged that it constituted malicious falsehood that tarnished its reputation, injured its business and caused it pecuniary losses. Sequel to these, the first respondent beseeched the lower Court, via a writ of summons filed on 16th May, 2013.
This appeal interrogates into the correctness of the decision of High Court of Lagos State, holden at Ikeja, (hereinafter addressed as “the lower Court”), coram judice: S.B.A. Candide-Johnson, J., in Suit No. LD/377/2013, delivered on 31st July, 2017.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]
II. Whether the lower Court was right in allowing the 1st Respondent to leapfrog and violate the legal prescription of the provisions of Exhibit N which spell out mandatory regulatory grievance resolution mechanism prior to Court action?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[A GUIDELINE OR POLICY STATEMENT IS NOT A LAW
‘It is not in doubt that the CBN Guidelines, which transfigured into exhibit N, trace their paternity and vitality to the provision of Section 57 of the Central Bank Act, 2007. However, in the eyes of the law, it is totally divorced from a statute enacted/passed by the legislature. It falls within four walls of 52 subsidiary legislation as ordained in Section 37 of the interpretation Act. Indeed, the apex Court has decreed, with the air of finality, that a guideline or policy statement is not law, see Statoil (Nig.) Ltd. v. Inducon (Nig.) Ltd. (2021) 7 NWLR (Pt. 1774) 1.’
THE CBN GUIDELINE CANNOT OUST THE JURISDICTION OF THE COURT
‘This brief legal anatomy on domestic remedy in legislation, with due reverence, exposes the poverty of the appellant’s seemingly dazzling argument on the efficacy and satisfaction of the provision of Section 6 of the CBN Guidelines, exhibit N, as a condition-precedent vis-a-vis the first respondent’s cause of action. The provision of the CBN Guidelines were/are impotent to put the first respondent’s action in an incubation pending its satisfaction by it. The lower Court’s ultimate finding, at page 2379, lines 15 – 21; volume V, of the mountainous record, is unassailable. The action was not caught in the intractable web of the doctrine of exhaustion of local remedy in an enactment. On this score, the lower Court did not run foul of the law when found that the first respondent’s suit, which mothered the appeal, was not enmeshed in the inescapable nest of doctrine of exhaustion of internal/domestic remedy in a statute. Contrariwise, it properly assumed jurisdiction over the suit.’]
.
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III. Whether, by deciding to discountenance the Final Written Address of the Appellant, and embellishing the case of the 1st Respondent, the lower Court denied the Appellant fair hearing?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[THE COURT CONSIDERED THE APPELLANT FINAL WRITTEN ADDRESS
‘This excerpt, which is disobedient to equivocation, amply and showcases the lower Court’s justification for the discountenance of the appellant’s final written address: lack of connection/nexus or relevance between it and the first respondent’s cause of action. It is decipherable from the record, the touchstone of the appeal, that the appellant filed its final written address on 13th February, 2017. The lower Court highlighted the appellant’s final address, inter alia, at the dawn of its judgment. It fully utilised it while considering the preliminary objections which it dedicated pages 2353-2377, volume V, of the record for the exercise. The appellant filed a written reply on points of law on 25th April, 2017. A microscopic examination of the judgment clearly indicates that it is dotted with the lower Court’s constant/frequent references and utilisation of the appellant’s written reply on points of law. This is manifest in pages 2383, 2388, 2391 and 2418, volume V, of the huge record. It stems from these extracts, warehoused in the records, the keystone of the appeal, that the appellant, through counsel, delivered its address before the lower Court in keeping with the sacred provision of Section 294(1) of the Constitution, as amended, the fons et origo of our laws. Indeed, it enjoyed the double procedural advocacy, delivery of written address and oral adumbration, with the corresponding response by its adversary, the first respondent. It flows that the appellant was duly accorded equal treatment, opportunity and consideration with its opponent, the first respondent, vis-a-vis the delivery of final written address. It must be underscored, apace, that the bounden duty of the Court, whether trial or appellate, is to provide the enabling and hospitable environment/milieu as well as grant the feuding parties equal chances to present their cases in the temple of justice. To my mind, the lower Court, in an unbiased manner, created the egalitarian and congenial atmosphere for the appellant to deliver its final written address.’
THE APPELLANT MISCONCEIVED THE JUDGEMENT OF THE TRIAL COURT
‘It appears that the appellant erected the gravamen of its grouse on the lower Court’s judicial act of discountenance of its final written address on the premises of irrelevancy. The point must be stressed that its complaint is totally on a different wicket. I think, with due respect, learned appellant’s senior counsel mixed up the issues. There is a wide dichotomy/gulf between preventing a party from delivery of address and jettisoning an address on account of irrelevance. The two are divergent streams in the variegated tributaries of adjectival law. They are mutually exclusive. While the want of the former, non- delivery/presentation of address, in deserving circumstances, can denude a party’s right to fair hearing, the presence of the latter, expulsion of an address, may be impotent to impregnate denial of right to fair hearing.’]
.
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IV. Whether the lower Court ought not to have struck out the Written Statement on Oath of CW1 dated 16.05.13 on the ground of its non-compliance with the mandatory requirement of the Oaths Law of Lagos State?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[THE FORM OF AN OATH CANNOT DEFEAT THE DEPOSITION THEREIN
‘The self-same Oaths Law makes allowance for omission or irregularity as to oath under Section 4 thereof. In Section 4(2) (b) and (c), it provides: (2) No irregularity in the form in which an oath is administered or taken shall – (b) invalidate proceedings in any Court; or (c) render inadmissible evidence in or in respect of which an irregularity took place in any proceedings. It is a recognized canon of interpretation of statutes that provisions of any legislation are not to be subjected to fragmentary interpretation. Put simply, mutually-related provisions of any statute should be married together and given holistic construction in order to garner the intention of the law maker, see NPA Plc. v. Lotus Plastic Ltd. (2005) 19 NWLR (Pt. 959) 158; Oyeniran v. Egbetola (1997) 5 SCNJ 94; Matari v. Dangaladima (1993) 2 SCNJ 122; A. – G., Abia State V. A.- G., Fed, (2005) 12 NWLR (Pt. 940) 452; Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1/(2005) 8 MJSC 1; Elelu-Habeeb v. A.-G., Fed. (2012) 13 NWLR (Pt. 1318) 423; A.-G., Lagos State v. A.-G. Fed. (2014) 9 NWLR (Pt. 1412) 217; Abegunde v. O.S.H.A. (2015) 8 NWLR (Pt. 1461) 314; Nobis-Elendu v. INEC (2015) 16 NWLR (Pt. 1485) 197; PDP v. Sheriff (2017) 15 NWLR (Pt. 1588) 219. In due allegiance to the injunction of the law, I have given a communal/conjunctive reading to the mutually-related provisions of Sections 4(2) (c) and 11 of the Oaths Law. It is my humble view that the provision of Section 4(2) (c) neutralizes the mandatoriness of the provision of Section 11 of the Oaths Law. Put bluntly, Section 4 (2) (c) douses the effervescent operation of Section 11 of the Oaths Law. That is to say, any irregularity in the form of an oath will not be fatal to the administration of oath under Section 11 of the Oaths Law. It follows that the CW1’s oath will be salvaged under the saving shelter of Section 4(2) (c) of the Oaths Law. The absence of conclusion statement is drained of the potential to ruin the CW1’s oath or smear it with an indelible incompetence which will snowball into its inadmissibility. The oath of CW1 is not marooned in the murky ocean of inadmissibility on the footing of the lack of the conclusion statement/declaration thereon. On the contrary, I am compelled by the salvaging provision of Section 4(2) (c) of the Oaths Law, to crown the CW1’s oath with the deserved toga of competence and validity. I am dispossessed of any justification, in law, to ostracise the CW1’s written statement on oath of 16th May, 2013. I welcome it to this appeal. I accord a wholesale affirmation to the lower Court’s impeccable finding on its competence.’]
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V. Whether the lower Court was right in failing to expunge Exhibit L2 from its record on the basis that it was functus officio on the issue of admissibility of Exhibit L2 when in fact it was admitted in contravention of Section 84 of the Evidence Act?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[THE 1ST RESPONDENT IS NOT THE PRODUCER OF THE COMPUTER GENERATED DOCUMENT
‘The first respondent’s second defence rotates around its disclaimer of the exhibit L2 as its non-producer, Interestingly, in Dauda v. FRN (supra), at 189, Aka’ahs, JSC, proclaimed: There is no doubt that the documents are computer generated which the EFCC got from various banks during investigation. It is therefore presumed that before the banks surrendered them to EFCC, they must have certified that the contents of the statement of account contained therein were correct. Indisputably, the exhibit L2 owes its parentage to the banks the appellant and the third respondent. To this end, it is my considered view that it can take benefit under the canopy of the presumption of certification accorded to computer–generated document issuing from a bank. The document does not exhibit any impairment or debilitating deficit to deny it the enjoyment of the presumption of due certification; a fortiori one endorsed by the Apex Court. Besides, this aspect, non-owner of a computer-generated document, to my mind, is not contemplated by the provision of Section 84 of the Evidence Act, 2011’
‘In a virgin and pioneer book: Electronic Evidence, revised edition (Lokoja, Jurist Publication Series 2019) at page 262; the prolific writer and learned jurist, Hon. Justice Alaba Omolaye-Ajileye; propounded: The point had earlier been made in the previous chapter that the scope of the applicability of Section 84(4) should be limited to a proponent whose computer device produced the electronic document. In other words, production of a certificate as an essential element of process of authentication should be made mandatory where a proponent is in control of the device that produced the document. It is, therefore, suggested that the law should not be too strict on a party whose computer did not produce the electronic document and it becomes impossible for him to produce same. This should be treated as an exception to Section 84 (4), in the interest of justice. This is because, it will amount to a denial of justice if an authentic document is kept out of the consideration of the Court by reason of the fact that a certificate is not produced by a party who cannot possibly secure its production. In this technological age, nothing more unjust can be conceived!’
‘It is deducible from the record, the bible of the appeal, that the trilogy of the appellant, the second and third respondents were involved in the generation of the exhibit L2 in question. Put differently, the first respondent was not particeps in the chain of production that midwifed the CSR – exhibit L2. Indeed, evidence on this galore. Neither the first respondent nor its computer was involved in its production. Therefore, the first respondent, was/is not in control of the computer, which gave birth to it, to equip it with the knowledge that will enable it authenticate its continuous workability. Nor can it properly issue a certificate disclosing the process of its production. To laden this burden on it will be tantamount to foreclosing or shutting the document out of the temple of justice. It, certainly, cannot be the intention of the legislature that Section 84 of the Evidence Act, 2011 should strip a party, who is not the owner/maker of computer-generated-document, of his right to present electronic evidence, meant for the prosecution or defence of his case in a Court of law. In effect, the lower Court was firma terra in law when it admitted the first respondent’s Credit Status Report (CSR) as an exhibit – exhibit L2. l, too, welcome the document to the appeal, I deck it with the deserved cap of admissibility. I resolve the issue three against then appellant and in favour of the first respondent.’]
.
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VI. Whether the lower Court was right in holding that the 1st Respondent’s action as constituted in the Writ of Summons and Statement of Claim is for injurious falsehood (especially having regard to the Court’s ruling of 18.09.14 that the 1st Respondent’s case was predicated on injurious falsehood and/or defamation)?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[INJURIOUS FALSEHOODS COMES UNDER DEFAMATION
‘In the first place, I am at a serious difficulty in comprehending the plinth of the appellant’s grouch. The tort of defamation embraces and houses injurious/malicious falsehood, an economic tort against the reputation of financial institutions which occasions/inflicts it with pecuniary losses; as one of its species. In other words, injurious/ malicious falsehood comes within the wide firmament of defamation. Being the legal parent of injurious/malicious falsehood, both exhibit symbiotic relationship. Hence, one cannot be discussed without the other. The chasm which the appellant seeks to draw between the two is unnecessary and peripheral to the action. The appellant, to my mind, is merely drawing a distinction without a difference which is incapable to ruin the prop of the action.’
THE CAUSE OF ACTION IS SITUATED IN INJURIOUS FALSEHOODS
‘The statement of claim, per contra, is dotted and suffused with the critical averment “injurious/malicious falsehood”. There are tons of averments bordering on the pecuniary losses which the injurious falsehood perpetrated on the financial state of the first respondent. The clause dominates and pervades the statement of claim – the main index for assessment of cause of action. From the tenor/phraseology of the facts in the statement of claim, x-rayed above, I have no difficulty in categorizing the first respondent’s cause of action as one that resides within the lean perimeter of injurious/malicious falsehood (trade libel) which the case-law has properly propagated in the wide sphere of tort of defamation. On this score, the lower Court’s finding, which christened the cause of action with the appellation/cognomen of injurious falsehood, is in tandem with the spirit and letter of the law that deserves total approbation by this Court.’
THE APPELLANT IS LIABLE
‘The exhibit L2, without any just cause, assassinated the first respondent’s financial integrity, goodwill and character with the appurtenant business losses/reverses attendant thereto. It has the capacity to cripple its capital market business. The lower Court duly respected the law on its finding on the point. I am in full agreement with it. I will return to this point in the fullness of time in this judgment.’]
.
.
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✓ DECISION:
‘It is partly imbued with merit and succeeds in part. Consequently, I allow the appeal in part. Accordingly, l, reduce the sum of N50 Billion, awarded by the lower Court, to the sum of N5 Billion, as general damages in favour of the first respondent against the appellant and the second respondent jointly and severally. For the avoidance of doubt, the sum of N5 Billion damages remains the award in this appeal and in Appeal No. CA/L/1093A/2017. The parties shall bear the costs they expended in the prosecution and defence of the partially-successful appeal.’
➥ FURTHER DICTA:
⦿ MOTION NOT ARGUED IS DEEMED ABANDONED
It is a notorious and ancient principle of law that a motion, be it on notice or ex parte, is not self-executory. It has to be argued by its proponent/owner for a Court to be properly equipped with the requisite jurisdiction to rule, one way or the other, on it. Curiously, however, the first respondent, in its infinite wisdom, did not argue the application in its amended brief of argument. In glaring absence of not being argued, the application suffers from barrenness and de jure, abandoned. In that unenviable and pitiable state of abandonment, its fortune is obvious. It carries the liability of being struck out. Consequently, in due obeisance to the dictate of the law, I strike out the application on account of abandonment. — O.F. Ogbuinya JCA.
⦿ WHERE SOME GROUNDS OF APPEAL ARE TO BE CHALLENGED, NOT A PO, BUT A MOTION ON NOTICE
It is now trite law that a motion on notice is filed where a party intends to challenge the incompetence of one or two grounds of appeal in the presence of an existing valid ground(s), see Garba v. Mohammed (2016) NWLR (Pt. 1537) 114; Kente v. Ishaku (2017) 15 NWLR (Pt. 1587) 96; PDP v. Sheriff (2017) 15 NWLR (Pt. 1588) 219; NNPC v. Famfa Oil Ltd. (2012) LPELR 7812(SC), (2012) 17 NWLR (Pt. 1328) 148; Cocacola (Nig.) Ltd. v. Akinsanya (2017) 17 NWLR (Pt. 1593) 74; Ezenwaji v. UNN (2017) 18 NWLR (Pt. 1598) 45; Petgas Resources Ltd. v. Mbanefo (2018) 1 NWLR (Pt. 1601) 442; KLM Royal Dutch Airlines v. Aloma (2018) 1 NWLR (Pt. 1601) 473; Isah v. INEC (2016) 18 NWLR (Pt. 1544) 14 175; Lawanson v. Okonkwo (2019) 3 NWLR (Pt. 1658) 77. UBN PLC V. Ravih Abdul & Co. Ltd. (2019) 3 NWLR (Pt 1659) 203; FRN v. Atuche (2019) 8 NWLR (Pt. 1674) 338; Lolapo v. COP (2019) 16 NWLR (1699) 476. Opeyemi v. State (2019) 17 NWLR (Pt. 1702) 403. I have married the meat of the objection with the inelastic position of the law displayed above. The wisdom behind the comparison is not far-fetched. It is to ascertain if the objection is obedient to the law or desecrates it. An in-depth study of the objector’s objection, discernible from its arguments thereon, clearly, reveals that it mainly chastises the appellant’s grounds 2, 3, 7 and 11 of the notice of appeal. It is obvious that the objector’s objection spared grounds 1, 4, 5, 6, 8, 9, 10, 12 – 19 of the notice of appeal. In other words, those grounds 1, 4, 5, 6, 8, 9, 10, 12 – 19 are viable and valid with the potency to sustain the appeal. In the face of the existential validity of grounds 1, 4, 5, 6, 8, 9, 10, 12 – 19, the objector ought not to have filed a preliminary objection. The proper/appropriate process is an application (motion on notice) challenging the viability of those grounds. — O.F. Ogbuinya JCA.
⦿ DOCTRINE OF EXHAUSTION OF LOCAL REMEDIES
In other words, the issue is hinged on the disrespect for the doctrine of exhaustion of local remedy in a legislation. The doctrine connotes that a party 49 must accomplish all internal remedies, donated to him by a statute, before approaching a Court for redress. Where a party ignores harvesting them, his action will be declared premature and impotent to activate/ignite the jurisdiction of the Court to hear it. The concept has received the blessing of the case-law in flood of authorities, see Eguamwense v. Amaghizemwen (1993) 9 NWLR (Pt. 315) 1, Bamisile v. Osasuyi (2007) 10 NWLR (Pt. 1042) 225; Aribisala v. Ogunyemi (2005) 6 NWLR (Pt. 921) 212; Ogologo v. Uche (2005) 4 NWLR (Pt. 945) 226; Awoyemi v. Fasuan (2006) 13 NWLR (Pt. 996) 86; Owoseni v. Faloye (2005) 14 NWLR (Pt. 946) 719; Okomalu v. Akinbode (2006) 9 NWLR (Pt. 985) 338; Unilorin v. Oluwadare (2006) 14 NWLR (Pt. 1000) 751; Aladejobi v. NBA (2013) 15 NWLR (Pt. 1376) 66; Kayili v. Yilbuk (2015) 7 NWLR (Pt. 1457)26; Bukoye v. Adeyemo (2017) 1 NWLR (Pt. 1546) 173; A.G., Kwara State Adeyemo (2017) 1 NWLR (Pt. 1546) 210; Magbagbeola v. Akintola (2018) 11 NWLR (Pt. 1629) 177. The wisdom for the doctrine is, inter alia, to prune down the number of “dispute that eventually find their way into Court”,Kayili v. Yilbuk (supra) at 83, per Kekere-Ekun, JSC. Thus, it is a similitude of alternative dispute resolution. — O.F. Ogbuinya JCA.
⦿ FINAL ADDRESS IS AN IMPORTANT STAGE BEFORE JUDGEMENT DELIVERY
There is no gainsaying the fact that the provision donates to litigating parties the right to render final addresses at the closure of evidence and before judgment. Final address connotes “the last or ultimate speech or submission made to the Court in respect of issue before it, before the delivery of judgment. It is the last address before the delivery of judgment”. see Ijebu-Ode L.G. v. Adedeji Balogun & Co. (1991) 1 NWLR (Pt. 166) 136 at 156, per Karibi-Whyte, JSC, Sodipo v. Lemminkainen Oy (1985) 2 NWLR (Pt. 8) 547; Mustapha v. Governor of Lagos State (1987) 2 NWLR (Pt. 58) 539; Kalu v. State (2017) 14 NWLR (Pt. 1586) 522. The caustic effect of denial of addresses to parties vis-a-vis proceedings is wrapped in Ndu v. State (1990) 7 NWLR (Pt. 164) 550, (1990) 21 NSCC (Pt. 3) 505. Therein Akpata, JSC, succinctly, stated: It is generally accepted that the hearing of addresses from counsel before delivery of judgment is an important exercise in judicial proceedings in our Courts. The entire proceedings may be declared a nullity if a counsel is denied the right to address the Court at the close of evidence. See also, Obodo v. Olomu (1987) 3 NWLR (Pt. 59) 111/(1987) 2 NSCC, vol. 18, 824 at 831; Niger Construction Co. Ltd. v. Okugbeni (1987) 11/12 SCNJ 113/(1987) 4 NWLR (Pt. 67) 787; Ayisa v. Akanji (1995) 7 NWLR (Pt. 406) 129; Kalu v. State (supra). — O.F. Ogbuinya JCA.
⦿ IMPORTANCE OF FINAL WRITTEN ADDRESS
It is important to catalogue the gains of final address as contemplated by the sacrosanct provision of Section 294(1) of the Constitution as amended. Address of counsel, though unable to cover lack of evidence, are designed to aid the Courts to appreciate the nature, strength and weakness in the cases of parties. It has the potential to bend the scale of justice in favour of a party who presents scintillating address, laced with alluring lexical dexterity, demonstrative of impregnable advocacy. It is on account of its benefits to the Court that it ranks second in the corpus of the three most important elements of a trial: the first and last being hearing of evidence and judgment respectively, see Okeke v. State (2003) 15 NWLR (Pt. 842) 25; Kalu v. State (supra). — O.F. Ogbuinya JCA.
⦿ DEPOSITION ARE ALL MATTERS OF PROCEDURE
Deposition signifies “a statement of a witness made under oath out of Court… Depositions are all matters of procedure as they are adjectival in nature and content”, see Buhari v. INEC (2008) 19 NWLR (Pt. 1120) 246 at 377 and 378, per Tobi, JSC. Indubitably, the admissibility of evidence, of all species, is regulated by the Evidence Act. — O.F. Ogbuinya JCA.
⦿ TECHNICALITY IS A HARMLESS ERROR
Technicality means a harmless error/mistake that does not go to the root of a case, see Olley v. Tunji (2013) 10 NWLR (Pt. 1362) 275. The “spirit of justice does not reside in form and formalities, nor in technicalities,” see Bello v. A.-G., Oyo State (1986) 5 NWLR (Pt. 45) 828 at 886, per Oputa, JSC; Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205. Substantial justice and technical justice, arch enemies in adjudication, had been in a protracted imaginary battle on which to win and arrest the attention of the Nigerian Courts. However, in the process of the juridical duel, the case-law, rightly, intervened and slaughtered technicality and buried it deeply under the temple of substantial justice. To accede to the appellant’s request will be akin to resurrecting the deceased technicality. — O.F. Ogbuinya JCA.
⦿ BECAUSE COMPUTER GENERATED DOCUMENT IS ANNEXED TO A NON-COMPUTER GENERATED DOCUMENT
In an avowed bid to amputate the long arm of the provision of Section 84 of the Evidence Act, 2011, the first respondent invented two defences to insulate and consolidate the admission of the document. The first is that the document is an annexure to another document and exempt from the requirement of the provision. Undeniably, the document, exhibit L2, is an appendage to exhibit D which incorporated it by reference. However, the exhibit L2 is not a progeny or part and parcel of exhibit D. Even though there appears a symbiotic relationship between but one is an independent of the other. They are distinct and separable both in their contents, context and imports. A satisfaction of the requirements of the provision by one does not, in the least, serve for the other and vice versa. This defence of annexure is a feeble defence 77 which is weak-kneed to absolve exhibit L2 from the mandatory compliance with the provision of Section 84 of the Evidence Act, 2011. — O.F. Ogbuinya JCA.
⦿ EVIDENCE PROCURED FROM CROSS-EXAMINATION
In law, pieces of evidence, elicited under the cross-fire of cross-examination, are potent and run pari passu with the ones from evidence-in-chief, see Gaji v. Paye (2003) 8 NWLR (Pt. 823) 583; Akomolafe v. Guardian Press Ltd. (2010) 3 NWLR (Pt. 1181) 338. They belong to the cross-examiner, see Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205. As a matter of fact, the law views evidence procured from the crucible of cross-examination as more reliable and compelling than the ones oozing out of examination-in-chief, seeAdeosun v. Gov., Ekiti State (2012) 9 NWLR (Pt.1291) 581; Okuleye v. Adesanya (2014) 12 NWLR (Pt. 1422) 321. — O.F. Ogbuinya JCA.
⦿ DEFAMATION VIS-A-VIS INJURIOUS FALSEHOODS
Defamation has been judicially, defined to embrace imputations which tend to lower a person’s dignity in the estimation of the right thinking members of the society and expose him, the person so disparaged, to hatred opprobrium odium, contempt or ridicule, see Oruwari v. Osler (2013) 5 NWLR (Pt. 1348) 535. The action is specifically anchored on injurious/malicious falsehood which signifies. “A false and injurious statement that discredits or detracts from the reputation of another’s character, property, product or business” It denotes “The common-law tort of belittling someone’s business, goods or services with remarks that are false or misleading: but not necessarily defamatory” see – Bryan A- Garner et al (eds.) Black’s Law Dictionary, 10th edition (West Publishing Co., US.A., 2014) pages 570 and 1721 respectfully. It bears the other names: – trade libel, slander of goods/title. It is an economic tort that attacks proprietary interest of citizens. — O.F. Ogbuinya JCA.
⦿ INGREDIENTS OF INJURIOUS FALSEHOODS
In Newbreed Org. Ltd. v. Erhomosele (2006) 5 NWLR (Pt. 974) 499, the locus classicus on injurious falsehood, the Apex Court confirmed the essential elements of this tort, videlicet: (a) That the words complained of were untrue (b) That they were published maliciously (c) That the plaintiff has thereby been caused damage. — O.F. Ogbuinya JCA.
⦿ DEFENCE OF QUALIFIED PRIVILEGE
Another grudge, nursed by the appellant, pertains to the lower Court’s finding on the defence of qualified privilege mounted against the case by the appellant. Qualified privilege is a defence usually contrived as a defence to untrue publication. An occasion is privileged when the person who makes the documentation has moral or public duty to make it to the person to whom he does make it person who receives it has an interest in hearing it. The twin Conditions must co-exist to make an occasion privileged. Reciprocity of interest between the parties is a sine qua non for a successful plea of the defence, see Iloabachie vs. Iloabachie (supra); Emeagwara vs. Star Printing of Pub. Co. Ltd (2000) 10 NWLR (Pt. 676) 489; Mammam vs. Salaudeen (2005) 18 NWLR (Pt.958) 478; Akomolafe vs. Guardian Press Ltd. (2010) 3 NWLR (Pt. 1181) 338, Peterside vs. Fubora (2013) 6 NWLR (Pt. 1349) 159; Ologe vs. New Africa Holdings Ltd. (2013) 17 NWLR (Pt. 1384) 449; Mainstreet Bank Ltd. vs. Binna (2016) 12 NWLR (Pt.1526) 316, C.S.S. & D.F. Ltd. vs. Schlumberger (Nig.) Ltd (2018)15 NWLR (Pt. 1642)238; Sule vs. Orisajimi (2019)10 NWLR (Pt. 1681) 513. The only way to destroy a defence of the privilege is to plead and prove malice. It denotes the desire to harm; hatred for, making use of the occasion for some indirect purpose, see Emeagwara v Star Printing & Pub. Co. Ltd. (supra). — O.F. Ogbuinya JCA.
⦿ A COMPANY CAN SUE FOR DEFAMATION
The dismal effect of defamation/injurious falsehood on a persona ficta, like the first respondent, was graphically captured in Oduntan vs. General Oil Ltd. (1995) 4 NWLR (Pt. 387) 1 at 14 wherein the Apex Court declared: A company can sue for defamation. It has reputation and goodwill, which can be protected. An injury to its reputation can lead to loss of its goodwill. The Courts will, in appropriate cases, protect the reputation and goodwill of a company by award of damages and injunction. While it is true that a company, being an artificial person, is incapable of having natural grief and distress, this does not mean the same thing as its reputation in the way of its trade and business. See, also, C.S.S. & D.F, Ltd vs. Schlumberger (Nig,) Ltd (Supra). — O.F. Ogbuinya JCA.
⦿ WHEN IS A PIECE OF EVIDENCE CREDIBLE
A piece of evidence is credible when it is worthy of belief, see Agbi v. Ogbeh (2006) 11 NWLR (Pt. 990) 1; Dim v. Enemuo (2009) 10 NWLR (Pt. 1149) 353, Eta v. Dazie (2013) 9 NWLR (Pt. 1359) 248; A. J. Inv. Ltd. v. Afribank (Nig.) Plc. (2013) 9 NWLR (Pt. 1359) 380; Emeka v. Chuba-Ikpeazu (2017) 15 NWLR (Pt. 1589) 345. In the same vein, a piece of evidence is conclusive if it leads to a definite result, .see Nruamah v. Ebuzoeme (2013) 13 NWLR (Pt. 1372) 474. — O.F. Ogbuinya JCA.
⦿ WHAT IS PROOF IN LAW
Proof in law, is a process by which the existence of facts is established to the satisfaction of the Court, see Section 121 of the Evidence Act, 2011; Olufosoye v. Fakorede (1993) 1 NWLR (Pt. 272) 747; Awuse v. Odili (2005) 16 NWLR (Pt. 952) 416; Salau v. State (2019) 16 NWLR (Pt. 1699) 399. (Pt. 1372) 474; APC v. Karfi (2018) 6 NWLR (Pt. 1616) 479; Ojobo v Moro (2019) 17 NWLR (Pt. 1700) 166. — O.F. Ogbuinya JCA.
⦿ WHAT IS DAMAGES
Damages have been defined as: “that pecuniary compensation which law awards to a person for the injury he has sustained by reason of the act or default of another whether that act or default is a breach of contract or tort”, see Iyere v. B.F.F. M Ltd (2008) 18 NWLR (Pt. 1119) 300 at 345, per Muhammad, JSC; Umudje v. SPDCN (1975) 841 SC 155 at 162; Neka B.B.B. Mfg. Co. Ltd. v. A.C.B. Ltd (2004) 2 NWLR (Pt.. 858) 521. — O.F. Ogbuinya JCA.
⦿ INSTANCES WHEN APPEAL COURT WILL INTERFERE WITH DAMAGES GRANTED BY TRIAL COURT
The appellant’s learned senior counsel had submitted that it had shown reasons for this Court to interfere with the award of damages. An appellate Court does not usually interfere with award of damages unless: (a) the trial Court acted under a mistake of law; or (b) where the trial Court acted in disregard of some principles of law: or (c) where the trial Court acted under misapprehension of facts; or (d) where it has taken into account irrelevant matters or failed to take into account relevant matters; or (e) where injustice would result if the appellate Court does not interfere; or (f) where the amount awarded is ridiculously low or high that it must have been a wholly erroneous estimate of the damages, see SPDCN v. Tiebo VII (supra); Cameroon Airlines v. Otutuizu (supra); British Airways v. Atoyebi (2014) 13 NWLR (Pt. 1424) 253; Agu v. General Oil Ltd. (2015) 17 NWLR (Pt. 1488) 327. — O.F. Ogbuinya JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Obande Festus Ogbuinya, J.C.A.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
O. Opasanya, SAN.
⦿ FOR THE RESPONDENT(S)
Chief F. O. Fagbohungbe, SAN., for 1st Respondent;
Yusuf Ali, SAN, for 2nd Respondent;
Adesoji Ojerinde, Esq., for 3rd Respondent.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
