The Court of Appeal has set aside a judgment delivered in the Suva High Court in relation to a defamation case filed by the Fijian Broadcasting Corporation and its Chief Executive, Riyaz Sayed-Khaiyum, against former opposition member of parliament Nikolau Nawaikula.
The appeal by Sayed-Khaiyum and FBC has been allowed and the judgment of the High Court dated 9th October 2020 has been set aside.
Nawaikula has been ordered to pay each of the appellants separately a sum of $5,000, amounting to a total of $10,000.00 as costs in the Appeals Court, and $3,500.00 each, amounting to a sum of $7,000 as costs in the High Court before November 30th.
FBC and its CEO sued Nawaikula for this post. However, in 2020, the Suva High Court ruled that Nawaikula’s Facebook post against FBC, and its Chief Executive was not defamatory.
In 2017, Nawaikula posted that Sayed-Khaiyum was responsible for the strike at Air Terminal Services during his time as Board Chair.
Nawaikula had also posted about FBC’s $21.5m loan, questioning why it wasn’t investigated by FICAC.
FBC and CEO Riyaz Sayed-Khaiyum had appealed against the decision on several grounds, one of which was that the judge had erred in fact and law.
They argued that the judge failed to properly evaluate all the evidence presented before the High Court.
They also said that the judge erred in law and fact by not holding that, as a result of the posting, the first and second appellant’s business operations suffered considerably.
They also claimed that Nawaikula acted with malice and in a high-handed manner in posting defamatory statements, entitling the appellant to punitive and aggravated damages and that Nawaikula even refused to apologize or retract the post.
In the judgment, three Appeals Court Judges stated that while it is true that matters relating to government employees may sometimes be a matter of public interest, generally, the business model of ATS, in this case, was somewhat different because the employees owned 49% of the shares and that there was a unique type of partnership which actually gave them private rights of ownership.
The three judges have said that the post by Nawaikula was calculated and targeted specifically at Riyaz Sayed-Khaiyum rather than the dissemination of useful information in the public interest.
They have also said that though Sayed-Khaiyum was a key figure in two public corporations, that did not make him a public figure and that whether a public figure or not, criticism has to be based on the truth.
In their judgment, they have also stated that they are not satisfied that, in this case, Nawaikula had established that the contents of the statement in the post were true and that the evidence revealed that the statements were made with malice.
The Appeals Court Judges also state that the appellants have established that Nawaikula’s Facebook post published on December 21st was defamatory and caused injury to their reputation and resulted in loss of business and revenue for FBC.
A permanent injunction has been granted and the case has been remitted to the High Court for assessment of damages.