RELATIONSHIP BETWEEN TORT OF DEFAMATION AND INJURIOUS/MALICIOUS FALSEHOOD

CASE TITLE: STANBIC IBTC BANK v. LONGTERM GLOBAL CAPITAL LTD & ORS (2021) LPELR-55610(CA)

JUDGMENT DATE: 20TH SEPTEMBER, 2021

PRACTICE AREA: TORT

LEAD JUDGMENT: OBANDE FESTUS OGBUINYA, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION

This appeal borders on the tort of injurious/malicious falsehood against a Capital Market Financial Institution.

FACTS

This appeal interrogates the correctness of the decision of the High Court of Lagos State, holden at Ikeja, Coram judice: S.B.A. Candide-Johnson, J., delivered on 31st July 2017. Before the High Court, the Appellant (STANBIC IBTC BANK PLC) and the second Respondent (CRC CREDIT BUREAU LIMITED) were the Defendants whilst the first Respondent ( LONGTERM GLOBAL CAPITAL LIMITED) and the third Respondent (UNION BANK OF NIGERIA PLC) were the Claimant and the third party respectively.

 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 creditworthiness 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 an unsecured overdraft facility that was classified as “lost’ as of 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 High Court, via a writ of summons and tabled against the Appellant and the second Respondent, jointly and severally, the following reliefs:

1. The sum of N50 Billion as general damages.

2. An order directing the 2nd Defendant to immediately delete from its electronically published data bank and all other publications, all references to the alleged indebtedness of Claimant to the 1st Defendant.

3. An order directing the Defendants to publish retractions and/or apologies to the Claimant on the cover pages of the Sunday and Monday editions of The Punch Newspaper, This Day Newspaper and The Guardian Newspaper in respect of the alleged indebtedness of the Claimant to the 1st Defendant.

4. An order of perpetual injunction restraining the Defendants from further publishing any other material or details relating to the alleged indebtedness of the Claimant to the 1st Defendant.

5. Interest on the judgment sum at the rate of 10% per annum from the date of judgment by this Honourable Court until the date of final payment by the Defendants.

6. N50 Million as costs of this action.

Subsequently, the second respondent commenced third-party proceedings against the third respondent on the ground that there was a non-disclosure agreement between them in respect of the Credit Status Report (CSR) of the first Respondent.

​In reaction, the Appellant, second and third Respondents joined issue with the first Respondent and denied liability by filing their defences. Following the discordant/rival claims, the lower Court had a full-scale determination of the case. At the closure of evidence, the parties, through their counsel, addressed the Court in the manner required by law, id est, adoption of written addresses. In a considered judgment, delivered on 31st July, 2017, the High Court granted the first Respondent’s claim and dismissed the third-party notice.

The appellant was dissatisfied with the decision hence this appeal.

ISSUES FOR DETERMINATION

The Court determined the appeal on the following issue:

1. 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).

2. 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.

3. 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.

4. Whether the lower Court was right in holding that Exhibit L2 was published to the whole world by the Appellant notwithstanding that access to the secure database from which the 3rd Respondent printed Exhibit L2 was granted by the 2nd Respondent on the instruction of the 1st Respondent coupled with the incontrovertible evidence that the 3rd Respondent thereafter released it directly and specifically to the 1st Respondent only vide Exhibit L.

5. Whether the lower Court was right in holding that the 1st Respondent proved a case of injurious falsehood against the Appellant having regard to lack of evidential proof of the essential elements of the tort of injurious falsehood.

6. Whether the lower Court was right in holding that the defenses of justification and qualified privilege do not avail the Appellant.

7. Whether the lower Court was not in error when it held that Exhibit L2 (the credit status report), was connected to Exhibit D (the 1st Respondent’s loan application), and on that basis affirmed the 1st Respondent’s case when in fact Exhibit L2 predated Exhibit D.

8. Whether the lower Court was right in holding that this case and the case embodied in Exhibit G were unrelated although both cases related to the same bank account and credit facilities.

9. 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.

10. Whether having regards to the state of pleadings and the evidence before the lower Court, the award of N50,000,000,000.00 (Fifty Billion Naira) general damages and N500,000.00 (Five Hundred Thousand Naira) cost is justified.

11. 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.

DECISION/HELD

On the whole, the Court of Appeal unanimously resolved the issues 1 – 9 and 11 against the Appellant and issue 10 partly in its favour, the appeal was allowed in part.

The sum of N50 Billion, awarded by the trial High Court was reduced to the sum of N5 Billion, as general damages in favour of the 1st Respondent against the Appellant and the 2nd Respondent jointly and severally.

RATIOS:

• TORT- DEFAMATION: Relationship between tort of defamation and injurious/malicious falsehood
  • TORT- DEFAMATION: Meaning of publication; whether an electronic publication constitutes publication to the whole world
  • TORT- QUALIFIED PRIVILEGE: What the defence of qualified privilege entails
  • EVIDENCE- ADMISSIBILITY OF ELECTRONIC DOCUMENTS: Presumption of due certification accorded to computer-generated document(s) issuing from a bank
  • EVIDENCE – ADMISSIBILITY OF ELECTRONIC DOCUMENTS: Whether a computer-generated document tendered by a party whose computer did not produce the document is admissible without need for certification as required by Section 84 (4) of the Evidence Act, 2011