Delivery of an article to a postal officer in the course of his/her duties is deemed delivered

CITI BANK (NIG) LTD v. MR. MARTINS IKEDIASHI
CITATION: (2020) LPELR-49496 (SC)

In the Supreme Court of Nigeria
ON FRIDAY, 24TH JANUARY, 2020
Suit No: SC.621/2015

Before Their Lordships:

OLABODE RHODES-VIVOUR, JSC
OLUKAYODE ARIWOOLA, JSC
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC
AMIRU SANUSI, JSC
EJEMBI EKO, JSC

Between

CITI BANK NIG. LTD. – Appellant(s)

And
MR. MARTINS IKEDIASHI – Respondent(s)

LEAD JUDGMENT DELIVERED BY OLUKAYODE ARIWOOLA, J.S.C.

FACTS OF THE CASE
The respondent was the claimant at the High Court whilst the appellant was the defendant.

By a writ of summons and statement of claim both dated October 20, 2004, the respondent instituted an action against the appellant at the High Court claiming 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 November 14, 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 percent per annum until final payment thereof.

The appellant as defendant in response filed a statement of defence. The respondent’s case as claimant was that he operated a current account with the appellant and on November 14, 2003, while the said account was still in credit, he issued a cheque in the sum of N30,000 in favour of one Dr. T. A. Bashorun. Dr. Bashorun subsequently presented the said cheque for payment to his bank – United Bank for Africa Plc 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 High Court gave judgment for the respondent and entered damages in the sum of N2million in favour of the respondent and costs of N200,000.

Being aggrieved, the appellant appealed to the Court of Appeal on five grounds. The appeal succeeded in part as pertains the amount awarded as damages and costs. The judgment of the High Court was affirmed except as it relates to the award of damages in the sum of N2million and costs of N200, 000, which were set aside. The appellant being further aggrieved appealed to the Court of Appeal.

ISSUES FOR DETERMINATION
The Court determined the appeal on the following issues: 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 the case.

APPELLANT’S SUBMISSION
Arguing issue one, the learned counsel for the appellant contended that the main issue in dispute between the parties borders on whether the appellant gave the required notice to the respondent before the closure of the respondent’s account under the contract between the parties. He contended that the respondent did not deny the dispatch of notice of account closure in his pleadings. He referred to the appellant’s specific allegation in the amended statement of defence that the notice of closure was dispatched to the respondent on October 15, 2003 vide a letter dated September 22, 2003 and that same was received by one Stanley U.K. on the respondent’s behalf. But that nowhere in the respondent’s pleadings is there a categorical denial that the notice of closure of his account was dispatched to him in accordance with the relevant terms of the contract between the parties. He contended that such failure of the respondent amounted to an admission. Counsel thus contended that the appellant complied with the requirements in the said contract terms. He submitted that all that the appellant was required to show to justify the closure of the account under the contract and in law was that the letter of notice was dispatched to the respondent’s address at the NIPOST, that is, that the letter was sent by registered post within the 7-day period before the account was closed. He relied on Daily Times (Nig) Plc. Vs. Amaizu (1999) 12 NWLR (Pt.631) 439 at 457.

On the position of the law on registered post, learned counsel submitted that the placing or delivering of an article to an officer of the Postal Service in the course of his duties shall be deemed to be delivery to the addressee. He referred to the provisions of Section 64 (3) of the NIPOST Act. Learned counsel contended that having delivered the notice of closure of the respondent’s account to the post office on October 15, 2003, the respondent cannot be heard to complain that he was not served with the notice or letter contrary to the clear forms of the contract between the parties. He stated that the appellant waited for a month after the notice was sent before proceeding to close the respondent’s account on November 14, 2003. He submitted that the appellant accordingly gave the respondent the required 7-day notice before closing his account in compliance with clause 7 of the contract.

On issue two, counsel quoted the words complained of by the respondent as being defamatory and argued that the appellant pleaded the defence of qualified privilege in response to the words complained of which the High Court and the Court of Appeal found not to avail the appellant. The appellant contended that the usual practice and requirement in the banking industry particularly in respect of the cheque transactions is that when a bank is unable to conclude a transaction, the reason for such inability is endorsed on the cheque. The appellant contended that it had a duty/interest in making the communication and UBA Plc to whom the communication was directly made also had a corresponding interest in having it made. Hence, the occasion in which the communication was made was an occasion of qualified privilege.

 

RESPONDENT’S SUBMISSION
Learned counsel referred to clauses 7 and 8 of the Account Opening Form constituting the contract of parties. He contended that, while clause 7 requires 7 days’ notice to be given (after delivery) before the closure of the account, clause 8 provides that any notice or letter will be considered delivered and received by the respondent at the time it would be delivered in the ordinary course of post. He submitted that from the two clauses of the contract, it is the time at which the notice or letter is delivered that is material to a determination of whether requisite notice was given and not the manner of delivery. Learned counsel contended that evidence ought to have been led, in order to comply with Articles 7 & 8 of the contract that in the ordinary course of post, a letter or notice sent through post would be delivered to the respondent’s address at a particular time, for instance, one week, two weeks, four weeks or six weeks. Therefore, a determination of whether closure of the account can only be made upon ascertaining when delivery according to the contract was made. He submitted that it is not the date it was delivered to the post office or received by the respondent that matters but the time it is deemed to have been delivered in the ordinary course of post to the respondent. He stated that there was no evidence of this time.

RESOLUTION OF THE ISSUES
In resolving issue one, the Court stated the settled position of the law that the placing or delivery of an article to an officer of the Postal Service in the course of his/her duties shall be deemed to be delivered to the addressee. In support of this, the Court reproduced Section 64(3) of the Nigerian Postal Service Act. Applying the provision to the instant case, the Court held that the law guiding transmission of articles by post is the Nigerian Postal Service Act. Hence, clause 8 of the contract duly entered into by parties in this case must be read in conjunction with the provisions of the Nigerian Postal Service Act. 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, the Court held that the Court of Appeal 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 post, upon such letter being signed for and collected from the postal officials.

The Court therefore held that from the agreement of the parties and the evidence before it, the respondent was given the required notice before the closure of his account. Thus, the appellant was not in breach of the contract between the parties.

On issue two, the Court held that 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. Where these two co-exist, the occasion is privileged. See; Giwa Vs. Ajayi (1993) 5 NWLR (Pt.294) 423, Ojeme Vs. Momodu (1994) 1 NWLR (Pt.323) 685; Iloabachie Esq. Vs.Benedict N. Iloabachie (2005) LPELR – 1492 (SC).

The Court noted that what the respondent considered which the two Courts below found to be libelous were the words – “Account closed” endorsed on the cheque issued by the respondent to a third party –Dr. Bashorun who presented same to his own banker – the UBA Plc for clearing. The Court held that contrary to the judgment of the Court of Appeal, the words complained of were not defamatory. The Court agreed with the appellant 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, the Court held, 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.

Concluding on this issue, the Court held that 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 filed a reply to plead any element of malice in the appellant in endorsing the alleged defamatory words. Therefore, the Court of Appeal was wrong to have failed to uphold the defence of privileged occasion in favour of the appellant.

On the 3rd, the Court held that having held that there was no breach of contract between the parties and that the alleged defamatory words endorsed on the cheque by the appellant was covered by qualified privilege, it was no longer necessary to consider the issue of award of damages to the respondent.

HELD
In conclusion, the Court held that the appeal succeeded and allowed same.
Appearances:
Folabi Kuti, Esq. with him, H. H. Bassey Esq.,
Pius Owhoavwodua Esq. and Temidayo Adeoye Esq. For Appellant(s)

Osayaba Giwa-Osagie Esq. with him, Michael Dedon Esq.
Ikechukwu Odozor Esq. and Bisola Bamigbola, Esq. For Respondent(s)

Compiled by LawPavilion

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