Areas Of Law
APPEAL, LAW OF BANKING, LAW OF EVIDENCE, LAW OF TORT, PRACTICE AND PROCEDURE

Summary Of Facts
The Respondent applied for a short term loan of ₦20,000.00 from the 1st Appellant which was guaranteed by the Respondent’s employer, the Federal Ministry of Industries. The loan was paid back by the Respondent through monthly deductions from his salary account kept with the 1st Appellant (Afribank Nig. Plc.). Thereafter the 1st Appellant directed its customers to move their banking transactions to its new branch at Area 7 Garki, Abuja where the Respondent opened a new salary account but still maintained the old account. Sometime in 2002, the Respondent presented before the Jos Branch a cheque for ₦9,000.00 which was paid to him but was treated as an overdraft by his branch bank. The 2nd Appellant a credit officer carried out a review of all accounts of the Respondent with the 1st Appellant. It was discovered by him that the Respondent’s account was overdrawn in excess of the sum of ₦20,000.00 and it has not been discharged. The 2nd Appellant with one Mahmood Yusuf (now deceased) who was the then branch Manager at the Abuja Main Branch, wrote a letter to the Federal Ministry of Industries on behalf of the 1st Appellant notifying them of the Respondent’s alleged indebtedness and seeking their cooperation in recovering same. The Respondent hence, instituted an action against the Appellants for defaming his character, as he claimed his official and private life were thoroughly investigated and his promotions were suspended. Also he contended that he made demands for the statement of his account from the Appellants but was not given. The Appellants on the other hand raised a defence of qualified privilege and counter claimed against the Respondent for the purported overdraft of N9, 000.00 with interest thereon. The trial court in dismissing the counter claim entered judgement in favour of the Respondent and awarded the sum of 5 million naira as damages in his favour. The Appellants’ appealed to the Court of Appeal to set aside the judgment of the trial court and if the court finds otherwise, the damages awarded in the Respondent’s favour be drastically reduced. The lower court affirmation of the decision of the trial court prompted the Appellant to further appeal to the Supreme Court.

Held
Appeal Allowed.

Issues For Determination

• Was the court below not wrong to have held that the publisher of the letter complained of was actuated by malice when there was nothing in the record to support that finding and without reviewing the facts of the case in relation to the applicable law?
• From all the circumstances of the case, should the appellants’ plea of qualified privilege not have succeeded?
• Was it not wrong for the court below to have based its decision on an issue that was not raised by the parties before it without first hearing them on that issue?
• Was the decision of the court below affirming the award of damages by the trial court justifiable in the circumstances?

Rationes
PLEADINGS – PURPOSE OF A REPLY BRIEF
“The purpose of a reply brief is to afford the appellant an opportunity to address new issues raised in the respondent’s brief, which were not dealt with in the appellants’ main brief. See: Basinco Motors Ltd. Vs Woermann-Line (2009) 13 NWLR (Pt. 11571 149: Ajileye Vs Fakayode (1998) 4 NWLR (Pt. 5451) 184: Agwasim Vs Ejivumerwerhaye (20011 9 NWLR (Pt.718) 395.” PER K. M. O KEKERE-EKUN, J.S.C

ISSUES FOR DETERMINATION – WHETHER AN APPELLATE COURT CAN RAISE AN ISSUE SUO MOTU AND DECIDE ON IT WITHOUT HEARING PARTIES ON SAME
“As rightly submitted on behalf of the appellants, the position of the law is that a court is not entitled to raise an issue and decide on it without affording the parties an opportunity to be heard. This is because in doing so the court is seen to leave its exalted position as impartial arbiter and descend into the arena of conflict. See: Kuti Vs Balogun (1978) 1 SC 53 ® 60: Obawole Vs Williams (1996) 10 NWLR (Pt.4771 146: Stirling Civil Eng. (Nig.) Ltd. Vs Yahaya (2005) 11 NWLR (Pt.935) 181: Omokuwajo Vs F.R.N. (2013) 9 NWLR (Pt.1359) 300: Ominiyi Vs Alabi: (2015) 2 SCNJ 494 @512: (2015) LPELR – SC.41/2004.

An appellate court is also not entitled to raise an issue not raised by either of the parties at the trial court or on appeal and base its decision thereon without affording the ‘ parties an opportunity to be heard. The court, being an impartial arbiter, must never be seen to be making a case for one of the parties. See: Ebele Okoye & Ors, Vs C.O.P (2015) 4 – 5 SC (pt.I) 101@ 155 – 155; Nobis-Elendu Vs INEC & Ors. (2015) 6 – 7 SC (Pt. IV) 1 @ 58; (2015) LPELR- 251217 (SC)” PER K. M. O KEKERE-EKUN, J.S.C

ISSUE RAISED SUO MOTU – CONSEQUENCES OF WHERE AN ISSUE RAISED SUO MOTU WOULD OCCASION A MISCARRIAGE OF JUSTICE
“Where it is established that the issue raised suo motu is fundamental and has occasioned a miscarriage of justice, the parties’ right to fair hearing would have been breached and the proceedings are liable to be set aside.” PER K. M. O KEKERE-EKUN, J.S.C

ACTION FOR DEFAMATION – PURPORT OF AN ACTION FOR DEFAMATION AND A DEFENCE OF QUALIFIED PRIVILEGE
“It is necessary to state briefly what an action for defamation and a defence of qualified privilege entails. This was explained quite lucidly by this court in the case of: Chief S.B. Bakare & Anon Vs Alhaji Ado Ibrahim (1973)  6 SC 147 @ 152 – 153 thus:
“In an action for defamation it is usual to allege in the statement of claim that the words were printed and published “falsely and maliciously” If the publication is shown to be false, malice is inferred by operation of law; it is enough to show that the words complained of, are completely false. … Where defamatory words are published without lawful excuse, the law conclusively presumes that the defendant is motivated by what is often described as malice in law; accordingly the plaintiff is usually not required to give particulars of the facts on which he seeks to rely in support of the allegation that the words were published “maliciously” … It should always be borne in mind that, once the plea of fair comment or qualified privilege is made out, … the Inference of malice Is rebutted and the burden is thrown upon the plaintiff of showing and proving ‘express malice’ against the defendants. This is generally known as “malice in fact, “and to be able to discharge the onus at the trial it is important that the plaintiff should deliver a reply, alleging express malice and giving particulars of the facts from which such malice is to be inferred.” – PER K. M. O KEKERE-EKUN, J.S.C

TECHNICAL MALICE- INSTANCE WHERE TECHNICAL MALICE WOULD ARISE
“As held by this court, technical malice arises where malice is inferred by operation of law i.e. where it is pleaded that the words were printed and published “falsely and maliciously” and it is shown that the defamatory words were published without lawful excuse, the law presumes that the defendant is motivated by malice. In such a situation the plaintiff is not required to give particulars of the facts on which he seeks to rely in support of the allegation that the words were published “maliciously”. See: Atoyebi Vs Odudu (1990) 6 NWLR (Pt.157) 384 @ 401 B – D.” – PER K. M. O KEKERE-EKUN, J.S.C

PLEA OF QUALIFIED PRIVILEGE- EFFECT OF A PLEA OF QUALIFIED PRIVILEGE
“The position of the law is that once the plea of qualified privilege is made out, the inference of malice is rebutted and the burden is thrown upon the plaintiff to show and prove ‘express malice’ against the defendants. To discharge this onus, the plaintiff must deliver a reply alleging express malice and give particulars of the facts from which such malice is to be inferred. See: Bakare Vs Ibrahim (supra) at 153 lines 15 – 22.