Plaintiff in libel case puts his reputation at stake
Case: Arik Air Nigeria Limited vs Punch Nigeria Limited and Ors

Court: Federal Capital Territory High Court, Abuja

Judgment delivered by: Justice S.C. Oriji

Date: June 21, 2016

Facts

The front page of Punch Newspaper of Sunday, 8th day of April, 2012 (admitted as Exhibit A in this proceeding), carried the headline: "DEBT: AMCON TAKES OVER ARIK AIR". Page 20 thereof has the publication set out below which was pleaded in paragraph 15 of the statement of claim:

"Strong indications emerged on Saturday that the Asset Management Corporation of Nigeria has taken over Aril Air, Nigeria's largest commercial airline.

"Sources said AMCON officials stormed Arik's head office at the Murtala Muhammed Airport, Ikeja, Lagos on Saturday to effect the takeover.

"The Managing Director, AMCONN Mr. Chike Obi, confirmed this development to one of our correspondents in a telephone interview Saturday night.

"When asked if AMCON had over Arik, Obi replied, 'Yes, we have taken over the company." But Arik media officer, Mr. Banji Ola, denied the takeover.

"Ola, in response to a text message sent to him by Sunday Punch, said, "Our management is not aware of any takeover." It was learnt that the takeover was as a result of Arik's inability to pay back several billions of naira it owed banks.

"AMCON had in April last year given the airline a N4.5bn lifeline. The capital injection, it was learnt, followed the acquisition of most of Arik's debt from two deposit money banks in December 2010

"Sources said Arik's debts were part of the non-performing loans purchased by AMCON in the first phase of its rescue programmed in the banking sector.

"Arik has reportedly been struggling to meet its financial obligations in the last few months. The development is coming barely six years after the airline was established.

"AMCON has recently vowed to use all means possible to recover all its debt."

Aggrieved by the publication, the plaintiff filed this suit on 24/5/2012. In paragraph 57 of the statement of claim filed with the writ of summons, the plaintiff claims these reliefs against the defendants:

A declaration that the words published by the defendants against the plaintiff in the Punch Newspaper of April 8, 2012, Vol. 18, No. 18,684 (sic: 19,684) falsely and maliciously written and published to the general public is defamatoey of the person of the plaintiff.
The sum of N8,000,000,000 (eight billion naira) only to the plaintiff as aggravated and exemplary damages against the defendants for libelous, false and malicious publication by the defendants against the plaintiff in the Punch Newspaper of April 8, 2012, Vol. 18, No. 19, 684.
An order of perpetual injunction restraining the defendants, his (sic: their) agents, servants or privies from publishing or further publishing or cause to be published any defamatory words against the plaintiff or to any person or persons.
A sum of N250,000,000 (two hundred and fifty million naira) as cost of action.

The defendants filed their statement of defence on 11/1/2013. The plaintiff filed its reply to the statement of defence on 8/2/2013.

At the trial which started on 27/11/2012, plaintiff called four witnesses. Oluseun Oludimu, company secretary, testified as PW1. He adopted his statement on oath filed on 24/5/2012 and his further statement on oath filed on 8/2/2013. PW1 tendered Exhibits A, B,C, D, E, F1, F2 and G.

During cross-examination of PW1, the learned defence counsel tendered Exhibit H through him. The PW2 was Mr. Taiwo Alakoso. He testified pursuant to a subpoena ad testificandum issued by the court on 10/10/2012 and served on the Managing Director, Asset Management Corporation of Nigeria. The said subpoena is Exhibit J. When PW2 was cross-examined, the defence counsel tendered Exhibits K and L through him.

James Ocholi, Senior Advocate of Nigeria (now of blessed memory), gave evidence as PW3. He adopted his statement on oath filed on 24/5/2012. When cross-examined, the learned defence counsel tendered Exhibits M, N1, N2 and O through him. Tunde Docemo, the Vice President, Treasury of the plaintiff, testified as PW4. He adopted his statement on oath filed on 30/4/2013 and tendered Exhibits Q1-Q5 through him. With the evidence of PW4, the plaintiff closed its case on 21/5/2013.

On 3/7/2013 the defendants opened their defence. Mr. Ahmadu Ilitrus, an assistant legal officer of Nigerian Civil Aviation Authority, produced some documents pursuant to a subpoena duces tecum issued by the court on 28/5/2013. On the application of learned defence counsel, the documents were received in evidence as Exhibits R, S and T. Ademola Alawiye (3rd defendant) gave evidence as DW1 and adopted his statement on oath filed on 11/1/2013. The DW1 tendered Exhibits U1-U10, V1, V2, W1-W3 and X. On 25/2/2014, Agbeso Emmanuel Isi, an employee of the Central Bank of Nigeria, was in court pursuant to a subpoena duces tecum issued by the court on 28/5/2013. He produced the circular on prohibition of new credit facilities to debtors of AMCON. The defence counsel applied to tender the document from the Bar; the said circular was received in evidence as Exhibit Y.

Mr. Ajila Najim, the Deputy Director, Large Tax Office (non-oil),Lagos office of the Federal Inland Revenue, testified as DW2. He gave oral evidence on behalf of the Executive Chairman, FIRS pursuant to a subpoena ad testificandum issued by the court on 16/4/2014. Kanu Idagu, an investigator with the Economic and Financial Crimes Commission, Lagos Zonal Office, testified as DW3 pursuant to a subpoena ad testificandum issued by the court on 16/9/2014 and served on the Executive Chairman of the EFCC. He gave oral evidence and tendered Exhibits V1A, V2A, Z and AA.

At the conclusion of trial, Oluwafunmilayo Jimoh Esq. filed defendants' final written address on 17/2/2016. Dr. Alex Izinyon, SAN, filed plaintiff's final address on 29/2/2016. Mr. Jimoh filed plaintiff's reply on points of law on 16/3/2016. The final addresses were adopted on 23/3/2016.

Ruling on the plaintiff's preliminary application

On 8/2/2013, plaintiff filed motion No. M/3848/2013. The first prayer was for an order of his Honourable Court striking out paragraphs 2(viii), 2.1 and 3.1 of the defendants' statement of defence for being vexatious. At the hearing of the motion on 12/2/2013, Dr. Alex Izinyon, SAN, withdrew the first prayer and posited, rightly in my view, that the issue could be raised in the final address. In his final address, learned senior counsel raised the issue as a preliminary application. The defence counsel did file a written address on 11/2/2013 in response to the said prayer. On 23/3/201, learned counsel for the defendants (Adeyinka Olumide-Fusika Esq.) adopted the said written address in opposition to the preliminary application.

The argument of learned Senior Advocate of Nigeria is that paragraphs 2(viii), 2.1 and 3.1 of the defendants' statement of defence are scandalous, embarrassing to the plaintiff, indecent, offensive and have no bearing with the plaintiff's case. He referred to Order 23, Rule 20 (6) of the Rules of this court, 2004, which gives the court the power to strike out any of the pleadings or any part thereof on the grounds that it is embarrassing, scandalous, vexatious or an abuse of the process of court. Dr. Alex Izinyon relied on Ezerebo v. IGP 9(2009) 11 NWLR (Pt. 1151) 117 in support of the said prayer and urged the court to strike the paragraphs complained of.

In his written address, lead defence counsel used a chat to show that the paragraphs complained of were in response to the plaintiff's averments in the statement of claim. It was argued that even if the said paragraphs do not respond to any of the paragraphs of the statement of claim (as alleged by the plaintiff's counsel), a defendant to a claim of damages for libel is not restricted to merely traversing what is alleged in the statement of claim. Defence counsel noted that the plaintiff is claiming N8,250,000,000,000 as damages for the alleged undermining of the sterling reputation it claims to have. It was submitted that the defendants are entitled to plead and lead evidence to prove the plaintiff's actual reputation. He urged the court to refuse the prayer.

Now, in paragraph 47 of the statement of claim, the plaintiff averred that the defendants are liable to the cost of the action, which is N250 million, being the cost of legal fees for prosecuting the libel. In paragraph 2(viii) of the statement of defence, defendants averred that the alleged legal expense of N250m is "not only contrived/bogus, but an exemplification of plaintiff's proclivity for wooly dealings."

In paragraph 2.1 of the statement of defence, defendants averred that at all times material to the publication complained of, plaintiff enjoyed the status of "virtual monopoly in the Nigerian aviation sector" which it exploited and has been exploiting irresponsibly to damn the government and people of Nigeria; that despite its notoriety for bad corporate behavior, Nigerian air passengers, especially on the domestic and West African routes, have no viable option of travelling with plaintiff and the government of Nigeria has no option but to continue to put up with plaintiff's persistent display of corporate irresponsibility. The defendants pleaded documents in support of these averments.

It is further averred in paragraph 3.1 of the statement of defence that plaintiff was incapable of being defamed by the publication in issue having regard to its "fame for bad corporate citizenship, crude corporate behavior and unethical or otherwise queer business practices..." Defendants pleaded alleged transaction in dud cheques; evasion or attempted evasion of tax and other financial obligations to the public purse; and irresponsible operational documents they will rely on in proof of these averments.

In Asheik v. Medi Trust Nig. Ltd. (2010) 15 NWLR (Pt. 1215) 114, it was held that the tort of defamation, whether libel or slander, relates essentially to the damage to the character of a person. In other words, a plaintiff who institutes an action for libel has invariably put his character in issue. He is understood to be telling the world what a good person he is and stating that someone is trying to destroy his enviable good name. He puts his reputation at stake depending on what defamation is all about and thus dares the defamer to disprove his good and admirable character. The above decision attests to the fact that an action for libel is about the protection of the good name of the plaintiff. The defendant is entitled to adduce evidence to show that the plaintiff's reputation is not as sterling or good as he claims, especially when the defendant pleads justification.

As I said above, paragraph 2(viii) of the statement of defence is in response to paragraph 47 of the statement of claim. The averments in paragraph 2.1 and 3.1 contest or challenge plaintiff's pleadings about his good reputation, goodwill and "shining example of transparency". For example, in paragraph 14 of the statement of claim, the plaintiff averred that it has never evaded payment dues in Nigeria or in any other part of the world in the course of its business. In paragraph 35, plaintiff stated that the publication had a negative effect on its erstwhile credible reputation which it earned over the years from the various strata of the public/private sector. In paragraph 43 thereof, plaintiff averred that its position as a leading airline operator imposes on it a duty to be above board and a shining example of transparency, which it has always done, but the publication has portrayed it as irresponsible, lacking in ethics etc.

The above are examples of averments to establish the plaintiff's good reputation. I agree with the defence counsel that defendants are entitled to plead and prove facts to show that the plaintiff lacks good character and reputation, especially as they pleaded justification as a defence. I therefore find nothing wrong with the paragraphs complained of by the plaintiff. The decision of the court is that the averments in paragraphs 2(viii), 2.1 and 3.1 of the statement of defence are not vexatious, scandalous or irrelevant. The plaintiff's preliminary application is hereby dismissed.

Judgment on substantive suit

In his final address, defence counsel posed four issues for determination:

In which sense, if any, is the publication (Exhibits A and B) capable of being defamatory to the plaintiff?
In what sense (if at all) was it capable of being defamatory of plaintiff; was the publication (Exhibits A and B) true and fair in substance?
Assuming, but not conceding, that the publication (Exhibit A and B) was at all untrue or unfair in any material particular, did the plaintiff suffer any actual reputational damage, or business on its basis?
Assuming but not conceding that the publication (Exhibit A) was untrue or unfair in its substance and the plaintiff had by it suffered any damage to its reputation and business, was the publication actuated by malice?

For his part, the learned senior counsel for the plaintiff distilled these three issues for determination:

Whether the words complained of as contained in the 1st defendant's Sunday Punch Newspaper publication of April 8, 2012 are libelous.
If the answer to the above question is in the affirmative, whether the said publication referred to the plaintiff.
Whether the plaintiff proved his case to entitle him to damages and his reliefs.

Plaintiff's suit is for libel predicated on defendant's publication in Exhibit A as pleaded in paragraph 15 of the statement of claim. Libel is a genre of the tort defamation. The basis of the tort defamation is that every person has a right to the protection of his good name, reputation and the estimation in which he stands in the society of his fellow citizens. Thus, anybody who publishes anything injuring the good name or reputation of another commits the tort defamation. The law therefore protects that reputation or good name from being unfairly or unjustifiably disparaged by spoken or written words. A defamatory statement is one which has the tendency to injure the reputation of the person to whom it refers and tends to lower him in the estimation of right-thinking members of the society generally and in particular to cause him to be regarded with feelings of hatred, contempt, ridicule, fear and disdain. See cases of National Electric Power Authority v. Chief Etim Inameti (2002) NWLR (Pt. 778)397 and Alawiye v. Ogunsanya (2004) 4 NWLR (Pt.864) 486.

To succeed in an action for libel, plaintiff must prove the following ingredients: (a) that the words complained of were published; (b) that the publication was made by the defendant to at least one person other than the plaintiff; (c) that the words referred to the plaintiff either in their natural meaning or by reason of an innuendo. See Iloabachie v. Iloabachie (2005) 13 NWLR (Pt. 943) 695; Guardian Newspapers Ltd. V. Ajeh (2005) 12 NWLR (Pt. 938) 205 and Asheik v. Medi Trust Nig. Ltd. (supra).

In paragraph 4.1.2 of the defendants' final address, learned defence counsel conceded that the first three elements above have been proved by the plaintiff. The court finds as a fact that the words complained of were published by the defendants to at least one person other than the plaintiff and that the words referred to the plaintiff. Against this backdrop, it is my opinion that four issues call for determination in this action, namely:

Whether the publication complained of in Exhibit A conveyed a defamatory meaning concerning the plaintiff; and if so, in what sense?
If the answer to the above is in the affirmative, whether the defendants are entitled to defences of justification and qualified privilege?
Did the plaintiff suffer any financial loss or injury to its reputation in its trade or business as a result of the publication complained of.
Whether the plaintiff is entitled to its claims.

Issue 1

Whether the publication complained of in Exhibit A conveyed a defamatory meaning concerning the plaintiff; and if so, in what sense.

In paragraph 16 of the statement of claim, it is averred that the publication referred to the plaintiff "as a debtor to AMCON and in winding up or in liquidator." In paragraph 17, it is averred that the publication portrayed the plaintiff as "a liquidated company who could not meet her financial obligation". It was averred in paragraph 30 that the said publication means or was understood to mean that the plaintiff: (a) is insolvent,(b) is not a responsible corporate person; (c) is a fraudulent company; (d) is not a company worth doing business with. It was further averred in paragraph 38 that the words published in Exhibit A mean or were understood to mean that the plaintiff: (a) is being run and managed by fraudulent persons; (c) is bankrupt; (d) is unable to pay its loans; and (e) has been liquidated.

The evidence of PW1 in support of the above pleadings is in paragraph 27 of his statement on oath. PW1 stated that he understood the "purport and content" of the publication to mean that the plaintiff: (a) is insolvent; (b) is not a responsible corporate company (c) is a fraudulent company; (d) is not a company worth doing business with; and (e) has been liquidated. For PW3, he stated that his understanding of the publication was that plaintiff "has been liquidated and is indebted to various banks"; and "in distress".

In paragraph 3 of the statement of defence, the defendants denied that the words in the publication were capable of bearing or being understood to bear any meaning defamatory of the plaintiff whether in the particulars alleged in paragraphs 16, 17, 30 and 38 of the statement of claim or at all. The defendants averred that the meanings imputed by plaintiff are far-fetched. In paragraph 9 of the statement on oath, DW1 gave evidence in line with the publication in paragraph 30(b)-(d) and 38(a), (b), (c) and (e) of the statement of claim.

The learned defence counsel argued with reference to paragraph 30 and 38 of the statement of claim that no reasonable reading of the publication can justify the allegation that it conveyed the meaning that the plaintiff is a fraudulent company; or is being run and managed by fraudulent persons; or is a lawless corporate body lacking ethics of corporate governance; or has been liquidated. Counsel conceded that anyone reading the publication and familiar with the purpose, functions and powers of AMCON may be led to think that the plaintiff is "unable to pay its debt" but not in the technical sense of being liquidated. He concluded that if there was anything in the publication capable of any defamatory connotation of plaintiff that can only be "by its casting as a non-performing debtor that is a bank loan defaulter."

To be continued

from: http://punchng.com/plaintiff-libel-case-puts-reputation-stake/