⦿ CASE SUMMARY OF:
Citi Bank Nigeria Limited v. Mr. Martins Ikediashi (2020) – SC
by NSA PaulPipAr
⦿ AREA OF LAW
– Banking Law.
– Postal service.
– Qualified privileged.
Citi Bank Nigeria Limited
Mr. Martins Ikediashi
⦿ LEAD JUDGEMENT DELIVERED BY:
Olukayode Ariwoola, J.S.C
* FOR THE APPELLANT
– Folabi Kuti, Esq.
* FOR THE RESPONDENT
– Osayaba Giwa-Osagie Esq.
⦿ FACT (as relating to the issues)
This is an appeal against the judgment of the Court of Appeal, Lagos Division delivered on the 7th day of February, 2014 affirming the decision of the trial Court, per the Honourable Justice F. O. Atilade delivered on the 16th day of February, 2007 except as to damages. The respondent was the claimant at the trial Court whilst the appellant was the defendant.
The gist of the case goes thus: By a writ of summons and Statement of Claim both dated 20th October, 2004, the respondent instituted an action against the appellant.
In paragraph 18 of the Statement of Claim, the Claimant claims against the defendant as follows:
(a) Damages for the breach of contract in the sum of N10million.
(b) Damages for libel in the sum of N10million as per the defendant’s published defamation vide the cheque dated 14th November, 2003, on which the word “account closed” was written.
(c) A full apology from the defendant to the Claimant.
(d) Interest on the judgment sum at the rate of 10% per annum until final payment thereof.
The appellant as defendant in response filed a Statement of Defence dated 31/08/2005 which was subsequently amended pursuant to an Order of Court so to do granted on 06/11/2006.
The respondent’s case as Claimant was that he operated a current account with the appellant and on 14th November, 2003 while the said account was still in credit, he issued a cheque in the sum of thirty thousand Naira (N30,000.00) in favour of one Dr. T. A. Bashorun. The said cheque was subsequently presented for payment by Dr. Bashorun to his bank United Bank for Africa Plc for payment but the cheque was returned unpaid with the words “ACCOUNT CLOSED” endorsed on it.
The respondent had contended that the said endorsement on the cheque is not only a breach of contract but also libelous having been published to Dr. T. A. Bahorun and the staff of the UBA Plc when in fact he was not given notice of any such closure of his account with the appellant.
On the other hand, the appellant’s case was that the endorsement on the cheque which the respondent was complaining about was premised on the fact that the respondent’s account with it had earlier been closed and the notice of the said closure given to the respondent via a letter sent through a Registered post as contained in the agreement.
In its reserved considered judgment, the trial Court gave judgment for the respondent. The Court, inter alia, held as follows: “It is in the light of the foregoing that I hereby enter judgment for the Claimant against the Defendant for damages in the sum of N2million comprising both nominal damages and damages in respect of the defendant’s liability for the libelous statement against the Claimant. It is further ordered that the defendant pays to the Claimant the sum of N200,000 as costs of litigating this suit and N2,000 costs of the defendant’s application dated the 18th October, 2006 respectively.”
Being aggrieved, the appellant appealed to the Court below on five grounds. The appeal succeeded in part as pertains the amount awarded as damages and costs. The judgment of the trial Court was affirmed except as it relates to the award of damages in the sum of N2million and costs of N200,000 which was set aside.
The appellant was further aggrieved with the judgment of the Court below and has appealed to this Court on four grounds of appeal filed on 7/4/2014.
1. Whether the required notice of account closure was duly given to the respondent by the appellant under and by virtue of the provisions of Section 64(3) of the Nigerian Postal Service Act?
2. Whether on the state of the pleadings and evidence led, the lower Court was wrong in failing to uphold the defence of qualified privilege in the appellant’s favour?
3. Whether the respective sums awarded to the respondent by the lower Court as damages for breach of contract and for libel were justified in the peculiar circumstances of this case?
⦿ RESOLUTION OF ISSUE(S)
1. ISSUE 1 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. By clause 8 of the contract, the respondent agreed that notice sent to him through post shall be considered as delivered and received by him at the time it would be delivered in this ordinary course of post. This means that by the provisions of Section 64(3) of the NIPOST Act, delivery of an article to an officer of the NIPOST in the course of his duties shall be deemed to be delivery to the addressee. In other words, I agree with the appellant that the Court below erred when it held that any notice or letter sent through the post to the respondent shall be deemed to have been delivered to him upon same being handed over to him in the course of ordinary post, and whereby registered 26 post, upon such letter being signed for and collected from the postal officials. There is nowhere in clauses 7 and 8 of the terms and conditions of the agreement it is provided that collection of the notice or letter from the post office is a condition precedent to closure of the respondent’s account by the appellant.
From the terms and conditions of the agreement and the available evidence, I agree entirely that the respondent was given the required notice before the closure of his account. In the result, the appellant is not in breach of the contract between the parties. There is evidence that the letter of the appellant notifying the respondent of the plan to close his account was duly dispatched in the ordinary course of post, to NIPOST and this was not specifically controverted or disputed by the respondent. The notice sent to the respondent by post is deemed delivered to him at such time it would be deemed delivered in the ordinary course of post.
2. ISSUE 3 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. In this case, the appellant had pleaded and called evidence to show that the occasion of the alleged defamation was privileged in that it owed it a duty to the sister bank to whom the cheque was returned to know why the appellant could no longer process the cheque and the reason is, as stated on the said cheque – the account was already closed, even though before its closure it was in credit. The law is that there must exist a common interest between the maker of the statement and the person to whom it was made. Reciprocity of interest is an essential element in the law of qualified privilege.
ii. It is noteworthy that the respondent herein did not file any reply to the amended statement of defence, earlier alluded to wherein the appellant pleaded the defence and called credible evidence to support the defence. By the state of the pleadings and the evidence led, I am satisfied that the appellant is covered with the defence of qualified privilege. The lower Court was therefore wrong to have failed to uphold the defence in favour of the appellant.
3. ISSUE 3 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. Having held that there was no breach of contract between the parties in this case in that the appellant complied with the provisions of clauses 7 and 8 of the contract in the account opening form in conjunction with the provisions of Section 64(3) of the NIPOST Act as the required notice of account closure was given to the respondent by the appellant, and the alleged defamatory words endorsed on the cheque was covered by qualified privilege, it is no longer necessary to consider the award of damages to the respondent.
⦿ SOME PROVISION(S)
Section 64(3) of the Nigerian Postal Service Act provides as follows:
THE PLACING OR DELIVERY
(a) of an article in any receiving box for the deposit of postal article, or delivery of an article to an officer of the Postal Service in the course of his duties; or
(b) the delivery of a postal article at the house or office, private mail bag, and private letter box of the addressee or to the addressee (or to his servant or agent or other person considered to be authorized to receive the article according to the usual manner of delivering post articles to the addressee) and where the addressee is a guest or is resident at a hotel, delivery to the proprietor or manager therefore or to his agents, shall be deemed to be delivery to the addressee.
⦿ RELEVANT CASE(S)
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
Generally, a privileged occasion arises if the communication is of such a nature that it could be fairly said that those who made it had an interest in making a communication and those to whom it was made had a corresponding interest in having it made to them. – Ariwoola, J.S.C. Citi v. Ikediashi (2020)
It is trite law that in order to debunk or destroy the defendant’s defence of fair comment or qualified privilege, a plaintiff must file a reply to specifically plead and call credible evidence of malice in the defendant. The respondent herein neither file a reply to plead any element of malice in the appellant in endorsing the alleged defamatory words. – Ariwoola, J.S.C. Citi v. Ikediashi (2020)
An occasion is said to be privileged where there is a common interest between the maker of the statement and the person to whom it was made. A privileged occasion is an occasion where the person who makes a communication has an interest or duty, legal social or moral, to write it to the person to whom it is made, and the person to whom it is made has a corresponding duty to receive it. – Kekere-Ekun, J.S.C. Citi v. Ikediashi (2020)
The defence of qualified privilege is a shield relied upon by a defendant where it is proved that the statement complained of is untrue. In the circumstances of this case, the statement that the respondent’s account had been closed was true. In my considered view, the issue of qualified privilege did not arise. – Kekere-Ekun, J.S.C. Citi v. Ikediashi (2020)
The common law Posting Rule, a rule of convenience so to say; is that once the letter is posted that is, put in the control of the Post Office, there is presumption that it will reach the addressee and the onus is not on the addressor to ensure either that it was not lost or was infact delivered. – Kekere-Ekun, J.S.C. Citi v. Ikediashi (2020)