•Clear two others
The High Court of the Federal Capital Territory (FCT) sitting in Apo, Abuja, Friday dismissed a N100bn libel suit instituted by former Chief of Army Staff (COAS) Lt-Gen. Azubuike Ihejirika (Rtd) against an Australian, Stephen Davies, Editor in chief of Arise News Chief Nduka Obaigbena and his firm Leaders and Company ltd for lacking in merit.
Trial Judge, Justice Valentine Ashi, who dismissed the suit in a judgement he delivered, held that the plaintiff failed to establish a prima facie case against the defendants.
Ihejirika had in 2014, instituted a N100 billion libel suit against the Australian Davies for accusing him (Ihejirika) of sponsoring the Boko Haram insurgent group.
He had in the suit asked the court to grant him N100 billion as damages for defamation.
The Plaintiff’s lawyers had argued that their client “has suffered grievous wrong and he has been exposed to scandal, odium, ridicule, humiliation while his character, credit and reputation were brought into disrepute, both in Nigeria and abroad”.
He had also then obtained an order of the Court to serve the process on the defendant abroad while his lawyers on the strength of the court order, applied to the Ministry of Foreign Affairs to
enable them to serve Davis who was said to reside in Perth, Australia.
Ihejirika also sought an order of perpetual injunction restraining Davis or his agents from further making defamatory comments about him. He equally sought an order compelling the defendant to publish “a full and unqualified retraction and apology conspicuously in the front page of newspaper to assuage the plaintiff for the said false, malicious and libelous publication”.
The plaintiff however with the leave of court on March 11,2015, joined the 2nd and 3rd defendants in the suit.
Two witnesses were called and three exhibits A-C was tendered by the prosecution.
While there was no response and representative of the 1st defendant, the 2nd and 3rd defendants through their counsel, Frank Chude, however filed their statement of Defence on 18 May 2016 and also called on one witness in defence of the suit.
According to the defendants the major issues for determination are; whether the second defendant was properly joined in the suit; whether Exhibit A, tendered by PW 1 was not wrongly admitted in evidence by reason of non compliance with the provisions of section 84 of the Evidence Act; whether the 2nd and 3rd defendants have made out the defence of qualified privilege and whether in view of the pleadings and evidence led, the plaintiff is entitled to the reliefs claimed.
However delivering judgment on the matter yesterday, Justice Ashi agreed with the counsel of the 2nd and 3rd defendants that the 2nd defendant being an agent of a disclosed principal cannot be held liable for the act of the 3rd defendant.
While stating that he cannot find where the 2nd defendant has been charged with liability, the judge held that he was wrongly joined in the suit and thereby struck out the name of the 2nd defendant as a party in the suit.
Similarly Justice Ashi held that the plaintiff failed to comply with section 84 of the evidence Act as regards computer generated evidence and as such Exhibit A was wrongly admitted in evidence.
Exhibit A was an LG/DVD player from which the said interview of Davies on Arise Television was replayed in the court.
Following the rejection of Exhibit A as evidence, the court then discharged the 1st defendant of liability.
On the issue of qualified privilege pleaded by the defendants, the judge also held that the plaintiff failed to establish a prima facie case against the defendants.
Justice Ashi noted that the defence though not denying the said publication was able to show that it acted in the interest of the general public and not out of malice against the plaintiff.
Citing various authorities Justice Ashi added that what can destroy the plea of qualified privilege is the proof of malice and not that the publication was true.
He stated that as at the time the alleged defamation was made, the issue of security was at the front burner and the 3rd defendant had a duty to inform the public.
He held that public interest or convenience is paramount to private interest or convenience and since the 3rd defendant was acting in the general interest of the public it is immune from liability.
Justice Ashi while noting that Ihejirika was given the opportunity to state his side of the story, held that a person who abhors malice against one party would not go out if his way to obtain the views of that person.
He said, “All the forgoing facts show that there was absence of malice in their Publications”.
He therefore dismissed the case for lacking in merit.
Similarly on the issue of whether the plaintiff has established a claim for damages base on libel, the judge stressed that proof of publication is only one step towards claiming damages as the plaintiff must further prove that his estimation has been lowered in the eyes of the public.
The judge held that is the 3rd party’s estimation that matters in establishing whether the reputation of the plaintiff has been damaged and not the plaintiff’s own assessment.
The judge stated that while the PW2, General Ashihiru Adebayo (rtd) in his evidence in chief stated that he was petrified by the said publication, he however contradicted himself under cross examination by Chude, when he said that he did not believe the version of Davies but that of Ihejirika who denied sponsoring Boko Haram.
“The case is hereby dismissed due to the failure of the plaintiff to establish a prima facie case against the defendants”, the judge held.
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