The Apo Division of the High Court of the Federal Capital Territory (FCT) on Friday dismissed a N100billion libel suit instituted by a former Chief of Army Staff, Azubuike Ihejirika, against an Australian, Stephen Davies, Editor-in-Chief of Arise TV, Nduka Obaigbena and his firm, Leaders and Company Limited.
The court threw out the case for lacking in merit.
Justice Valentine Ashi held that the plaintiff failed to establish prima facie case against the defendants.
Mr. Ihejirika, a retired lieutenant general, had in 2014 instituted suit against Mr. Davies for accusing him (Ihejirika) of sponsoring the Boko Haram terrorist group.
He asked the court to grant him N100 billion as damages for defamation.
His lawyers argued that the retired general suffered grievous wrong and was “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 Mr. Davis who was said to reside in Perth, Australia.
Mr. Ihejirika also sought an order of perpetual injunction restraining Mr. 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 a 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 second and third defendants in the suit.
Two witnesses were called and three exhibits, A-C, were tendered by the complainant.
While the first respondent did not file appearance in the case, the second and third defendants through their counsel, Frank Chude, filed their statements of defence on May 18, 2016 and called one witness.
According to the defendants, the major issues for determination were: whether the second defendant was properly joined in the suit; whether Exhibit A, tendered by the plaintiff was not wrongly admitted in evidence by reason of non compliance with the provisions of section 84 of the Evidence Act; whether the second and third defendants were able to push through their defence of qualified privilege and whether, in view of the pleadings and evidence led, the plaintiff is entitled to the reliefs sought.
However, delivering judgment on the matter Friday, Justice Ashi agreed with the counsel of the second and third defendants that the second defendant, being an agent of a disclosed principal cannot be held liable for the act of the third defendant.
The judge held that the second defendant was wrongly joined in the suit and thereby struck out his name.
Similarly Justice Ashi held that the plaintiff failed to comply with section 84 of the Evidence Act as regards computer generated evidence and that 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 court.
Following the rejection of Exhibit A as evidence, the court then discharged the first defendant of liability.
On the issue of qualified privilege pleaded by the defendants, the judge also held that the plaintiff failed to establish 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 a proof of malice and not the truth of the publication.
He stated that at the time the alleged defamation was made, the issue of security was key in the country, and that the third defendant had a duty to inform the public.
He held that public interest is paramount to private interest or convenience and that since the third defendant acted in the general interest of the public, it is immune from liability.
Justice Ashi, while noting that Mr. Ihejirika was given the opportunity to state his side of the story, held that a person with malice against another party will not go out of 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 established a claim for damages based on libel, the judge stressed that proof of publication was only one step towards claiming damages as the plaintiff must further prove that his estimation had been lowered in the eyes of the public.
The judge held that it is third party’s estimation that matters in establishing whether the reputation of the plaintiff has been damaged and not the complainant’s own assessment.
The judge noted that while the plaintiff witness 2, Ashihiru Adebayo, in his evidence-in-chief stated that he was petrified by the said publication, he however contradicted himself under cross examination when he said that he did not believe the version of Mr. Davies but that of Mr. 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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