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    Friday, July 22, 2016

    Arik Air Loses N8.25bn Libel Suit Against Punch

    The Federal Capital Territory High Court, Abuja has dismissed an N8.25bn libel suit filed by Arik Air Nigeria Limited in 2012 against Punch Nigeria Limited.
    In a judgment delivered on June 21, 2016, Justice S.C. Oriji dismissed Arik’s suit for lacking in merit and ordered the airline to pay a cost of N50,000 to Punch.
    The judge declared that Arik failed to prove that it suffered any financial loss or injury to its reputation as a result of an April 8, 2012 Sunday Punch’s publication with the title, “Debt: AMCON takes over Arik Air,” which the airline had complained of.
    “So, assuming that the defendants are not entitled to the defence of justification and qualified privilege, the fact that the publication did not occasion any loss to the plaintiff will whittle down its claim of N8bn.
    “From all that I have said, the conclusion I must reach is that the plaintiff is not entitled to its claims. The suit is dismissed. I award a cost of N50,000 to the defendants, payable by the plaintiff,” Justice Oriji declared.

    Arik Airline had, through its lawyer, Dr. Alex Izinyon (SAN), dragged Punch Nigeria Limited and three of its employees – Casmir Igbokwe, Ademola Alawiye and Oyetunji Abioye – to court claiming that the defendants maliciously defamed it through the April 8, 2012 Sunday Punch publication.
    Izinyon had argued that the Sunday Punch’s publication falsely and maliciously portrayed his client as being insolvent, fraudulent, liquidated, an irresponsible corporate person, a company not worth doing business with and one being run and managed by fraudulent persons.
    He had argued that what an ordinary reader would deduce from the publication was that his client was “a liquidated company who could not meet her financial” obligations and which was not the true position.
    Izinyon maintained that the defendants had defamed his client and urged the court to compel the defendants to pay his client N8bn as aggravated and exemplary damages and another N250m as the cost of filing the suit.

    But the defendants, through their lawyer, Mr. Adeyinka Olumide-Fusika, maintained that the publication was neither false nor malicious.
    Olumide-Fusika contended that the Sunday Punch’s publication could not have defamed Arik Air because it already had “fame for bad corporate citizenship, crude corporate behaviour and otherwise queer business practices.”
    In paragraphs 2 (viii), 2.1 and 3.1 of his clients’ statement of defence, Olumide-Fusika also pleaded “alleged transaction in dud cheque, evasion or attempted evasion of tax and other financial obligations to the public purse, and irresponsible operational behaviour and customer relations against the plaintiff,” and listed documents he would rely on to prove the averments.
    But Izinyon raised a preliminary objection to the averments contained in paragraphs 2 (viii), 2.1 and 3.1 of the defendants’ statement of defence and urged the court to strike them out for being scandalous.

    However, in his judgment, Justice Oriji said the defendants, in a bid to prove that their publication was not malicious, were entitled to plead and prove facts to show that the plaintiff lacked good character and reputation.
    The judge held, “I therefore find nothing wrong with the paragraphs complained of by the plaintiff. The decision of the court is that the averments in 2(viii), 2.1 and 3.1 of the statement of defence are not vexatious, scandalous or irrelevant. The plaintiff’s preliminary objection is hereby dismissed.”
    Justice Orji also upheld Olumide-Fusika’s submission that the defendants intended no malice in the publication as they contacted and reflected the response of Arik Air media officer, Mr. Banji Ola, in the story.
    He held, “I have considered the particulars of malice in paragraph 23 (i)-(vii) of the statement of defence. I need to remark that the allegation that the defendants never bothered to ask the plaintiff its own version of the story they intended to carry as averred in paragraph 23 (iii) is not correct. As I said before, it is evident from the publication that the defendants contacted the plaintiff’s media officer (Mr. Banji Ola).

    “In paragraph 26 of the reply pleadings, plaintiff stated that ‘its media officer was never contacted to confirm or deny the said publication.’ However, at the trial, Mr. Ola did not testify to deny the report that a text message was sent to him, which he replied.
    “I hold the view that if the report in Exhibit A that AMCON ‘has taken over’ the plaintiff was with malicious intent, the defendants would not have sought and reflected the plaintiff’s version in the report.”
    Though the judge agreed with Izinyon that the publication conveyed or was capable of conveying defamatory imputations to the effect that the plaintiff’s debt was part of the non-performing loans that AMCON purchased, he, however, held that the defendants were justified to publish the story because “there is no serious contention that the plaintiff’s debt was taken over by AMCON and that it is thereby indebted to AMCON.”
    Justice Oriji ruled, “I hold that the defendants have established that the substance or sting of the publication (i.e. the plaintiff’s indebtedness to AMCON) is true.

    “…If I may be prolix, the reason for the said takeover in the report is the plaintiff”s indebtedness. That being the case, I agree with the defence counsel that the defence of justification avails the defendants, notwithstanding that the takeover of the plaintiff by AMCON was not true.
    “I find support in the decision of the Supreme Court in The Registered Trustees of Rosicrucian Order, AMORC (Nigeria) v. Awoniyi (supra) that for the defence of justification to succeed, it is not necessary to prove the truth of each and every word comprised in the alleged libel. It suffices if the defendant establishes that the main substance of the libelous statement is true and justified. I hold that the defence of justification avails the defendants.”
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