Guardian

In the High Court of Lagos State,

In the Ikeja Judicial Division,

Before Justice Y.O. Idowu (Mrs.),

Sitting at Court No. 8

General Civil Division, Ikeja,

On Wednesday, November 2012

Suit No. ID/1487/2008

Between:

Dr. Hakim Akinlade (claimant)

and

Kunle Ladejoji

Mr. M.A. Abdulahi -

Mrs. Tola Gbogboade (defendants).

Judgment

UNDER cross-examination, the witness stated he had not seen any audited account before the AGM but that he had seen two audited accounts thereafter.

Further that Exhibit F was not signed, not forwarded with a letter and not accompanied by a report. That the audit was sent to the secretariat of the association and received by a staff of the secretariat who brought it to him at the AGM, which was already in session.

He stated that the outstanding documents requested for were submitted to the defendants by hand same as all previous documents before the audit exercise commenced.

He stated further that the audit was rejected not because it did not comply with standards known to the defendants but because of inaccuracies that were pointed out by members at the AGM and because there were figures, which were there which required explanation before he assumed office.

That he was not aware that the association members had gone to the auditor’s office and only became aware after the visit.

That Exhibit G was not submitted to him as it was not stamped nor acknowledged at the secretariat.

That he had received correspondence form the auditor’s firm since August 2007, another in December only for the letter to have been written in February, seven (7) months after the AGM.

That the latter was an indictment on him meant to malign and defame him and not for clarification as alleged.

The witness stated that the letter infers that the audit account presented at the AGM was not prepared by our firm nor did it originate form us.

Further that he does not know the difference between a draft and an audit account and that the account sent later by the defendants were in all material similar to what he presented and the figure similar.

The witness stated that after exhibit G, the defendants descended into the arena of conflicts and that it was unprofessional for them to get involved in the politics of the association which by their letter, they did.

The 2nd claimant witness was subpoenaed and he presented his written statement on oath, which was adopted as his examination-in-chief.

In the witness statement dated 7th February 2012, the 2nd claimant witness stated that while the claimant was chairman, there was a rift in the executive and certain members made various allegations against the claimant, which resulted into a crisis within the executive of the NMA, Lagos State branch.

That due to the pervading crisis, an expanded executive council meeting of the NMA set up a six-man panel of enquiry to investigate the allegations, which thereafter found some members guilty of the allegations especially the claimant on the grounds of forgery of an audited report dated February 14, 2008 written by the audit firm of K.L. & Co.

That based on the findings of the panel, the general assembly of the NMA impeached the claimant and another member of the executive.

That, however, he sounded a note of warning regarding the style and manner in which the claimant was impeached, stating that the claimant was not accorded fair hearing in which he was denied the opportunity to defend the allegation of forgery made against him.

Further that the findings of the panel should not have been presented to the general assembly but rather to the NMA executive council to make recommendations to the disciplinary committee, which would take necessary disciplinary actions.

That thereafter upon the NMA elders’ intervention, this witness and another elder were mandated to go with the claimant to the firm of auditors to investigate the issue of the alleged forgery as stated in the letter of February 14, 2008.

That Mr. Kunle Ladejobi, the principal partner of the audit firm and another Mr. M.A. Abdullahi shed more light on the issues and Mrs. Motunrayo Adeshakin, the administrative secretary of the NMA who was said to have collected the alleged forged audit report was questioned in their presence where she informed them all that the audit report was printed for her on the morning of Thursday, August 2, 2007 on the instruction of Mr. Abdullahi.

Thus that the findings of our investigation was that the said audited report which was presented at the general meeting of the NMA on August 2, 2007, was not a forgery but an unauthorized release of the said report from the audit firm of K.L. & Co.

Finally, that the letter was written in response to that written by the panel of enquiry set up to investigate the allegations against the claimant.

Under cross-examination, the 2nd claimant witness stated that the allegations against the claimant were form within the executive and that one of the indictments was based on a letter the panel of enquiry relied upon.

On examining Exhibit F, the witness stated that it was neither a draft or an audited account and that he believed that the letter in issue, written by the auditor was done in good faith; finally that no report except an audited account is acceptable at an AGM.

The claimant closed his case at this point.

The defence opened its case with the adoption of the 1st defence witness written statement on oath dated April 24, 2009, which was admitted as his evidence-in-chief.

The following documents in the list of documents filed were admitted as exhibits:

No. 1 as Exhibit A1, No. 2 as Exhibit K, 7 as Exhibit L, 8 as Exhibit M, 9 as Exhibit N, 5 as Exhibit E1, 6 as Exhibit G1.

By the written statement on oath, the 1st defendant witness stated that sometime in May 2007, the claimant visited the office of the 1st defendant to make enquiry about the procedure for the audit of the association’s accounts since he was new to the system and he was told to get all the association’s records ready for audit exercise but nothing was forthcoming till sometime in July 2007 when some records were brought in for the exercise.

That the records were incomplete and thus the audit was suspended and the claimant informed via a letter dated July 25, 2007.

That on August 1, 2007, at about 6 p.m. after the close of work the claimant came to the defendant’s office to enquire about the audit to which he was reminded of the letter of July 25, 2007, which he had not responded to.

The witness stated that he did not say anything about the annual general meeting or its date.

That the firm has an established procedure of dealing with audited accounts. First a draft, clearly stamped so, is sent to the client for discussion of all outstanding issues on the accounts.

He stated that the accounts circulated at the annual general meeting is not authentic as it can neither be described as draft nor the final accounts which should have had the report of the auditors page and signed by the same auditors.

He stated that at the commencement of audit, the claimant actually demanded 14th months accounts as at June 30, 2007, and they prefer that till April 30, 2007.

That on October 2, 2008, a second draft copy of the accounts as at April 30, 2007, was forwarded to the claimant.

That on February 13, 2008, an investigation team of the medical association led by Dr. Omotayo visited our office to conduct investigation of our firm’s audit of the association where we denied originating it or knowing anything about it as it did not comply with our standard.

Finally, that the letter of 1st February 2008 was written after the investigative panel left our office to the claimant, to put record straight and it was received in his office by Dr. Olowoselu Olusola on the same day. That the words in the said letter are factual and in their ordinary meaning.

Under cross-examination, the witness testified that Exhibits A1 and E1 have the same acknowledgement signatures, but that Exhibit G1 was received by Dr. Olowoselu Olusola at about 6.28 p.m. on February14, 2008.

She stated that close of work is subjective and 6.28 p.m. is not necessarily after close of work.

She went on that she communicated orally with the claimant in respect of the AGM. That she asked for some documents and when they were not forthcoming, she wrote the claimant.

That the audit was for the year 2007 and that she knew it was for the AGM but did not know when it was to hold.

She stated that she submitted 2 draft reports during the course of the year that is Exhibit B and C, for discussion.

She stated that the Nigeria medical Association had an AGM last year and the audit firm prepared audit report for 2010 but that between 2007 to 2010, there was no audit report.

That she didn’t know the average expenditure of the NMA. That Exhibit F is not an audited account and Exhibits F, B, C are prone to errors, B and C being drafts and F not stamped.

The Defendant’s written address is dated March 29, 2012, wherein learned counsel proffered as the issue for determination: whether the letter of February 14, 2008, is defamatory when there is no malice and or publication to a third party.

Counsel opened his argument by stating that it is the claimant’s claim that the court should declare that the 2006-2007 audit account circulated at the AGM was not forged by him and that it was prepared by the defendants.

Counsel submitted that for an audited account to be so-called, it has to be properly prepared and emanating from the appropriate person and that as the document did not fulfill these conditions, its presentation as an audited account from the defendant is a forgery.