Justification As A Defence To Libel Suit

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

Between

Mr. Kayode Sunmola

And

Bashoran J. K. Randle

…… Defendant

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.

Issues:

• 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.

1. Ayanniyi Esq. for the Defendant