In the High Court of the Federal Capital Territory in Abuja Judicial Division holden at Wuse, Zone 5 Court 9, Abuja on November 15, 2010 before his Lordship:
Hon. Justice 0. 0. Goodluck
Suit No: FCT/HC/CV/129/06
Mr. Kayode Sunmola
Bashoran J. K. Randle
This court’s take on the issue of pleadings is that even where there is an implied joinder, both parties are legally obliged to proffer evidence in support or rebuttal of the facts pleaded, failure to advance evidence in support of pleaded facts would amount to an abandonment of the impliedly or expressly pleaded facts.
So held by a judge of the High Court of the – FCT, Justice 0. O. Goodluck, in a judgment he delivered while dismissing the plaintiff’s suit and held that his handling of the firm’s account was fraudulent.
The plaintiff is a professional accountant with an HND (Accounting), Bachelor of Science Degree, Fellow of the Institute Chartered Accountants of Nigeria and Fellow of the Chartered Institute of Taxation. Plaintiff served for sometime as the chief accountant, Panalpina Worldwide Transport Nigeria Limited. At the behest of the defendant, who is also a chartered accountant and erstwhile President of the ICAN, he registered a partnership in the name of J. K. Randle & Co. for the purpose of rendering accounting and audit services, business of taxation and generally for the provision of services as chartered accountants.
Whilst with J. K. Randle & Co., plaintiff ran the bank accounts of the firm. One of such firm’s accounts was maintained with the Skye Bank Pic. On or about August 18, 2006, the plaintiff received a letter written by Skye Bank Pic in respect of the J. K. Randle & Co.’ s firm’s account, attached to the said letter was another letter written by the defendant. By the latter’s attached letter, the defendant urged the bank, i.e. Skye Bank Plc, to investigate the circumstances under which the plaintiff opened an account at the bank’s 142, Ahmadu Bello Way, Lagos, Victoria Island Branch in the name of the firm without his knowledge and approval. In the said letter, the defendant further alleged that the firm’s cheques were paid into the said account whilst the funds were siphoned by the plaintiff within days of lodgment. Defendant described the transactions conducted vide the account as clearly “fraudulent transactions” thus he threatened to hold the bank responsible for negligence.
Plaintiff duly responded to the letter by stating his own side of the story whilst denying the allegations contained therein. Skye Bank Pic subsequently wrote the defendant following its investigations over the bank transactions by denying that the transaction was fraudulent. It explained that all the transactions were carried out in tandem with the customers’ mandate. It was further explained that the account was already in existence hence it was transferred from their Allen Avenue Branch where the account was originally opened to their Victoria Island Branch.
Aside from the defendant’s letter on August 23, 2006, to Skye Bank Plc, the defendant also wrote one Edward Hudson, a mutual friend of the parties in this suit to inform him that the plaintiff opened an account without his knowledge, as an addendum to the said letter written to Mr. Hudson, the defendant commented thus, “This dormant account was utilised by Kayode to siphon funds from the account”
Aggrieved by the contents of both letters regarding his person, the plaintiff instituted an action for defamation against the defendant vide this suit contending that the publications injured his credit and professional reputation and has been brought to scandal, odiu m , ridicule and contempt demanded N50m general demages from the defendant for defamation and wrongful detention.
In reaction, the defendant filed a statement of defence and counter claim on May 28, 2009.
• Whether on the pleadings the plaintiff has successfully made out a case of libel?
• Whether the defendant has made out a defence of justication
• Whether in the absence of a reply to a statement of defence, the averment contained in the statement of defence are not deemed as admitted by the plaintiff?
The plaintiff has raised two issues for determination in plaintiff’s final written address which is as follows:-
• Whether the letters of the defendant on August 15, 2006 and also that on 11 August 26, 2006 are defamatory of the plaintiff; and
• Whether in the light of the above, the plaintiff is not entitled to damages as claimed for defamation of character against the defendant.
It is now settled through our judicial precedent that an action for libel will only succeed where certain considerations can be established by the party who alleges a case of libel against him. They are as follows; that there was a publication in writing; the publication was false; that the publication was defamatory of the plaintiff; that the defamatory statement was published to a third party; and that it was the defendant who published the word.
All these enunciated principles must be established by the plaintiff herein in order to succeed in his action for defamation.
There is uncontroversial evidence before this court that the firm’s cheques were paid into the Skye Bank account by plaintiff and transactions conducted through the account which is the subject matter of this suit were cleared by the plaintiff into his personal investment and/or for his self service. A perusal of Exhibit PW1, the firm’s statement of account for the duration between July 1,2006 – July 31, 2006 reflects an opening balance of N496.14, two cheques totalling N7m and another in the sum of Nl.850m were paid into the account. Exhibit PW1L also reflects that the defendant cashed the sum of N2m on the same day the cheques were paid whilst an aggregate sum of N2.850m was paid into his investment account, the following day. By the July 10, a further sum of N2m was cleared through the account thus the account reverred to its opening balance of N496.16 within a few days.
Plaintiff did not controvert the defendant’s evidence that the account was milked dry by him for his personal use. In the absence of any conflicting evidence, this court is of the view and will so hold that the plaintiff utilised the firm’s funds for use other than the purpose for which the firm was established.
In all, plaintiff failed to refute the defendant’s assertion in paragraph 15(a) of the statement of defence that he swallowed up or diverted all the cheques to himself.
Be that as it may, the issue before this court is whether the words contained in Exhibits PWlD and PW1K are defamatory of the plaintiff and if it is, whether the defendant is entitled to the defence of justification, having regard to the facts and circumstances of this case. This court is impelled to state that the partnership agreement would only be considered by this court in its valuation of evidence upon its production to this court, see Sections 93 and 94 of the Evidence Act.
Be that as it may, it is not the case of the plaintiff that he is entitled to the firm’s funds for personal use nor has he alleged that he is entiltled to put the firms funds to his personal use under the partnership agreement. A thorough examination of the pleadings before the court leaves one with the deduction that the plaintiff palpably failed in controverting defendant’s assertion as to the fraudulent dealings with the firm’s account.
Plaintiff’s counsel has equally, made heavy whether on the fact that the defendant referred to the firm of J. K. Randle & Co. as his firm in exhibits PWlO and PWlK, again this court is of the view that these are palliating considerations given the pleadings and issues before it. The crucial issue is that the defendant has alleged that the firms account was used by the plaintiff to conduct fraudulent transactions be it if the defendant’s firm or a partnership account, the pertinent issue for resolution is whether the transactions conducted vide the Skye Bank account amounts to fraudulent transaction(s) or otherwise.
When one looks at the entire transaction conducted by the plaintiff from the perceptions of the bank, it seemingly appears that the transaction is regular but then, the entire transactions given the uncontroverted evidence of OWl (J.K. Randle) leaves a sour taste in the mouth, this feeling is further accentuated by the unilateral relocation and reactivation of the dormant account, all these discreet exercise set the pace for the total evaciation of the funds by the plaintiff. When one considers the testimony of OWl vis- a-vis the bank statement for July, the conclusion that the publication in both letters are true irresistible.
The OWl discharged the burden of proof when he said that the firm’s account known to him was that opened in Allen Avenue, hence he was oblivious of the operations of the account in the Ahmadu Bello Branch. This testimony that the cheques were routed through a conduit or siphoned off by the plaintiff for his personal use within four days is equally true. The entire transaction, from the transfer of the firm’s account to an unknown branch, the diversion of the firms funds for his personal use and benefit, be he a managing partner or an employee bears the full colourations and semblance of fraud. The evidence of OWl is more compelling by the failure of PWI (Sunmola) to controvert the testimony of the defendant. The conduct of the plaintiff in the management of the firm’s account is untoward, reprehensible and borders on fraud.
In the light of the foregoing considerations, this court’s answer to the defendant’s second issue is answered in the affirmative. I hold that the defendant has made out a defence of justification. I now turn to the second issue for determination raised by the plaintiff’s counsel. It is settled that the object of awarding damages is to compensate the plaintiff for any loss or injury he has suffered or sustained. The plaintiff, in the present scenario, has palpably dent the high values of integrity, honour and credibility which he ascribes to himself. This court is of the view that both letters written by the defendant contains the handling of the firm’s account by the plaintiff. Undoubtedly, the plaintiff actually diverted cheques into the account and siphoned all the monies within a few days of lodgment. The conclusion is irresistible that the plaintiff’s transactions were fraudulent as it relates to the accounts of the firm of J.K. Randle & Co. with Skye Bank Plc.
This action is accordin”gly dismissed. Costs is awarded in the sum of N100,000 against the plaintiff.
Lawyers: D. Bakre Esq. for the Plaintiff.
- Ayanniyi Esq. for the Defendant
Judiciary As Last Hope Of The Common Man
The judiciary is said to be the last hope of the common man. If there is no judiciary or where the judiciary is shut, the hope of the common man is dashed. If the saying is anything to go by, one is shocked that for nearly two months, the last bastion of hope of the masses was shut by striking workers, yet it has been business as usual. Both the government and the workers union are not bothered about the ugly situation.
Judiciary Staff Union of Nigeria (JUSUN) is on indefinite strike nationwide to protest the inability of both the federal and some state governments to grant financial autonomy to the judiciary. The independence of the judiciary is contained in Nigeria’s grundnorm, the Constitution of the Federal Republic of Nigeria 1999 as amended. Just as the positions of President and Governors of states are creations of the constitution, so also is the independence of the judiciary.
The truth of the matter is that JUSUN does not need to go on strike before the two tiers of government can implement the financial autonomy of the judiciary. It is a constitutional provision and political office holders swore to implement the spirit and letters of the Constitution.
Indeed, the judiciary and legislature are supposed to be independent as provided in the Constitution. When the three arms of government are independent, separation of powers is assured. This is because it will prevent fusion of powers which leads to tyranny. Fusion of powers smacks of dictatorship. In many states of the federation, governors have become absolute rulers.
It is becoming common that some state governors find it easy to shut the judiciary in order to have their way when unfavourable conditions tend to persist in their states.
For eight months, Rt. Hon. ChibuikeAmaechi shut the judiciary following an indefinite strike embarked upon by JUSUN. The closure of the courts caused a lot of hardship for both practising lawyers and litigants. Some lawyers who could not make ends meet died as a result. Litigants suffered lack of access to justice.
The indefinite strike embarked upon by JUSUN to demand financial autonomy is commendable because of its insistence on propriety obviously intended to prevent state chief executives from ruling on their whims and caprices.
But pathetically, many governors are unwilling to allow an independent judiciary that they will no longer hoodwink or coerce to do their biddings. The delay in implementing the autonomy is predicated on the fact that most of our leaders are bigger than the country’s institutions.
Hence, we have strong leaders and weak institutions. At the federal and state levels, the suppression of the country’s main institution has aided tyranny.
Consequently, the governors and even the president can afford to do anything unconstitutional and go scot-free with it.
The national and some state Houses of Assembly have become rubber stamps ready for the masters’ use anytime. Therefore, one hardly finds meaningful debates in the legislature except in states that have strong opposition. In the states, where all the members of the legislature come from the ruling party, meaningful debate is moonshine.
The fashionable term is “Carry go”. The term “Carry go” literally means treat as requested. There is obviously no alteration or modification. The application of “Carry go” has continued to worsen the state of our democracy. The governors or the president can afford to do anything he likes without any compunction. Consequently, the masses and indeed the electorate do not have a voice anymore. The voices of the electorate are lost in the legislators’ inefficiency and cowardice.
The country is worse for it. What we have in most states of the skewed Nigerian federation are monarchs, who brook no challenges. They rule howsoever they like, for themselves and their various families. They have goons all over their states whose duty it is to defend them. If not for the state of our nation where rust is ripeness, do the President and Governors have no choice in implementing the constitution?
Many state chief executives implement and execute projects that would facilitate corruption yet any project that would better the lot of the people is either treated with levity or left undone. The question that readily comes to the mind is: whose interest are the leaders working for? Is it for themselves or the populace?
By: Chidi Enyie
Elele OSPAC Seeks Govt’s Assistance
Elele Security Planning and Advisory Committee has appealed to the state government to come to their aid.
The local vigilante often called ESPAC said the call became imperative following its key role in sustaining peace in the communities.
In a chat with newsmen in his office yesterday, the commander, Daniel Wosa disclosed the unbearable situation his men faced on daily basis without anything to take home.
Wosa said some of his men had threatened to quit the voluntary job since nobody appreciated them.
The commander expressed regret that ESPAC members had volunteered to sacrifice their lives for the society yet nobody appreciated them.
“Some struggle to feed their families. It is unfair …”
“We appeal to governor Nyesom Wike to consider us because of the key role we have been playing in Rivers state.
“Today communities,road users and business men can attest to our untiring effort since we came on board.”
“No more kidnapping, killing and other vices which threatened the peace of the land,” he noted.
“Boys under me who volunteered to sacrifice for the wellbeing of others need recognition,” he stated.
Wosa said there was no security challenge the group could not contend if only government could give them support.
He specifically commended the executive Chairman, Ikwerre Local Government Area, Hon Samuel Nwanosike for his assistance and said if not Ikwerre Council boss the situation would have degenerated.
Wosa said some time now he had been using his hard-earned money to appease his men.
Wosa said it was on record Elele OSPAC had never been found wanting in the cause of its duty and explained that the group worked in collaboration with the conventional police to achieve desired objective
Meanwhile,a youth leader in Ikwerre Local Government, Comrade Eleonu Chukwuka says Hon Samuel Nwanosike’ s achievement in security has given him the second term ticket.
Comrd Chukwuka said Ikwerre Council Boss had written his name in gold by surmounting the security situation in Ikwerre.
The youth leader while chatting with newsmen said the introduction of OSPAC by Nwanosike led to other infrastructural and human capital development and pointed out that peace was key to development.
It is a thing of joy that farmers can return to farm. Normal life has returned.
It is the greatest achievement which snowballed to what we are seeing today in Ikwerre.
Ikwerre people are proud of him and will back till eternity.
Legal Departments In LGAs And Justice Dispensation
Lawyers at the Local Government (LG) Legal Department would supervise and undertake prosecu-torial activities in magistrate courts, and represent their respective local governments in area courts, Magistrates Courts, High Courts, among others.
They would be on hand to render necessary legal advisory services to their local governments.
They could be in charge of advising their LG Chairmen on legal issues relating to issuance of the Customary Right of Occupancy at the LG level, thereby playing roles similar to those being played by the ministries of Justice and Lands at the State level in the Statutory Right of Occupancy. Section 6 of the Land Use Act, 1978 provides: “It shall be lawful for a Local Government in respect of land not in an urban area. (a) to grant customary rights of occupancy to any person or organi-sation for the use of land in the Local Government areas for agricultural, residential and other purposes. (b) to grant customary right of occupancy to any person or organisation for the use of land for grazing purposes and such other purposes ancillary to agricultural purposes as may be customary in the local government area concerned”.
They could take steps to set up (citizens) ADR/Mediation centres at the LG level, as well as render other legal aid/advisory services aimed at helping the local community or to make justice more affordable and easily accessible by local inhabitants.
Establishing a legal department at the LG level will tremendously reduce the pressure of having all lawyers striving to settle down only in major cities, such as Lagos, Port Harcourt, Kano, Onitsha, Aba, Ibadan, Jos, Abuja, Enugu City, Uyo, Warri, Calabar, Kaduna City, etc; lawyers employed by the various local governments would have to relocate to the local council headquarters where they’d live and operate from, with their families.
Establishing a legal department at the LG Level would bring lawyers and legal services closer to the people at the grass-root; residents of local communities will no longer need/have to travel to the major cities in order to get the services of lawyers to draft their various agreements, contracts, or to render other legal services.
Lawyers in the LG Legal Departments will, apart from attending to the legal needs of the local government councils, assist in prosecution of some cases, especially in courts located within the local council areas. This will minimise involvement of law prosecutors in criminal prosecution. Lay police officers‘ and non-lawyers’ continued involvement in criminal prosecution in Nigeria, is partly responsible for the worsening cases of awaiting trial cases and prison congestion in the country.
This is because of their professional limitations in this area, so many of the so-called police prosecutors are not able to match or withstand the legal firework of professionally qualified lawyers who act as defence counsel in courts during criminal prosecutions; these lay police officers and non-lawyers hardly understand the intricacies of formal courtroom proceedings and trial procedure, and more often than not, have very little or no preparation prior to their court appearances.
It may therefore be seen that the clamour for extrication of lay policemen from criminal prosecution is primarily not targeted at creating more jobs for lawyers, but rather at leaving criminal prosecution in the hands of qualified personnel (lawyers) who alone understand the law and are well able to match the expertise of defence counsel in court, in order to ensure that justice was dispensed in good time and more effectively.
Gradually, from among these lawyers, who are LG legal officers, some magistrates or even judges are appointed, just as it is done at the state level.
Establishing a legal department at the LG level would provide huge job/employment opportunities for lawyers in Nigeria.
Imagine, if all the 774 local government areas in Nigeria could create and have legal departments, and each local government (depending on capacity) employs an average of 10-20 lawyers in its legal department, we’d have at least 7,740 to 15,480 lawyers or much more immediately gainfully employed at the local government level.
Establishing a legal department at the LG level would redress the existing inequity and unfairness at the local government level. The following departments already exist in all the LGAs in Nigeria: Education, Health, Agriculture, Finance, Information, and Works. It’s gross marginalisation against the legal profession that there’s not yet a legal department in all LGAs in Nigeria. This obvious anomaly, which has wreaked huge havoc, considering the undeniable importance of law and lawyers in society, needs to be be urgently corrected to provide the needed balance that would make lawyers more relevant to society and move society forward.
B) Stakeholders To Make This All-Important Project A Reality:
The Nigerian Bar Association (NBA) at both the National and Branch levels: NBA has responsibility to set the ball rolling. Indeed, if the NBA does nothing, nothing happens.
The Attorney-General of the Federation of Nigeria, considering that he is the Chief Law officer of the Federation.
Attorneys-General of the various states in Nigeria.
The Chief Justice of Nigeria.
The President of the Court of Appeal.
The Chief Judge of the Federal High Court and the President of the National Industrial Court of Nigeria.
The Chief Judge of the Federal capital High Court and the High Courts of the various States in Nigeria.
The House of Assembly of the various States in Nigeria.
The Nigerian Governors‘ Forum and the Governors of the various States in Nigeria.
The Body of Senior Advocates of Nigeria (BOSAN), the Egbe Amofin Lawyers, the Body of Benchers (BOB), the Eastern Bar Forum (EBF), the Muslim Lawyers’ Association of Nigeria (MULAN), the Mid-West Bar Forum (MBF), the Christian Lawyers’Association of Nigeria (CLASFON), the National Association of Catholic Lawyers (NACL), etc.
C) Conclusion: What Does This Take As A First Step?
It starts with an amendment to the Local Government Law of each State, to create a legal department in the LGAs in the state.
This is long overdue. Provision of necessary logistics and support infrastructure would then follow.
This writer believes that there would be business enough for lawyers in Nigeria, only if the lawyers could, by themselves and working hand in hand with their Bar Associations, put their acts together and stand up to do something concrete and constructive for themselves and their profession.
Time for action is now; there is no time to wait or waste, because time will never be right. Barack Obama said, “the change we desire will not come if we wait for some other person or some other time. We are the ones we’ve been waiting for. We are the change that we seek. A stitch in time saves nine.”
It would be recalled that lawyers under the employment of Local Government Authorities in Rivers state, penultimate week, demonstrated for full recognition and salary increment to match that of their counterparts in the employment of the State Government, while the Authorities are against such on the ground that they (lawyers), are first and foremost, not employed as lawyers by the authorities, thus, may be making an unlawful request.
Udemezue is of the Civil Litigation Department with the Nigeria Law School.
By: Sylvester Udemezue with reports from King Onunwor
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