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From Godwin Tsa, Abuja
The Court of Appeal in Abuja yesterday returned the case files in two appeals arising from a N101 million defamation judgment against the Socio-Economic Rights and Accountability Project (SERAP) to the Presiding Judge for reassignment.
The appeals were filed separately by SERAP and its Deputy Director, Kolawole Ogundare, against the judgment of the High Court of the Federal Capital Territory (FCT), which in May awarded damages in favour of two operatives of the Department of State Services (DSS).
The appellate court had earlier heard SERAP’s appeal and reserved judgment but later vacated the order after deciding that the two appeals, having arisen from the same judgment, should be heard together and determined in a composite judgment.
The development marked another setback in the proceedings, coming days after hearing in Ogundare’s appeal was halted midway.
Before the panel vacated its earlier order, a brief drama played out when SERAP’s lead counsel, Tayo Oyetibo, SAN, informed the court that applications were pending by some organisations seeking to be joined as amici curiae, or friends of the court.
Prof. Olarewaju Fagbohun, former Vice Chancellor of Lagos State University, then rose and told the panel that he appeared for the Columbia Global Freedom of Expression Initiative of Columbia University and the United Nations Special Rapporteurs on the rights to freedom of peaceful assembly and association, and freedom of opinion and expression.
He said the application, filed on October 12 pursuant to Order 6 Rule 1 of the Court of Appeal Rules 2021 and Section 6(6)(a) of the 1999 Constitution, sought leave to participate in the appeal.
“We’re seeking the leave of this honourable court to participate in this appeal and assist the court with independent submissions,” he said.
Fagbohun added that the proposed brief would provide independent legal analysis and relevant comparative and international jurisprudence.
But the panel’s lead judge, Justice Danlami Senchi, questioned the basis of the intervention.
“Did the court invite you? Let’s be serious. This is the kind of image we create that is not good for us. We didn’t invite you. On behalf of whom?” the judge asked.
Justice Senchi added: “I said earlier that we are not here to speak long grammar or waste the court’s time. We didn’t seek any assistance.”
Fagbohun replied: “We are not adversarial. We’re actually trying to assist this court.”
Justice Senchi said every case must be decided on its merits and that an outsider could only be heard where its interest stood to be affected.
“But you’re not a party in the lower court and in this court,” he said, urging Fagbohun to withdraw the application “so that we can make progress.”
Fagbohun subsequently withdrew the application and apologised to the court.
The judge commended him, saying: “Your juniors here will be happy for that.”
Mojirayo Ogunlana, who appeared for the Southern African Litigation Centre, also withdrew her application to be admitted as amicus curiae.
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The panel thereafter turned to Ogundare’s appeal, which had stalled last Friday.
Midway into the hearing of an application for enlargement of time by Ogundare’s counsel, Oluwatosin Adesoye, the court expressed displeasure with the manner in which the application was presented.
Justice Senchi told the lawyer that he “should have sought the counsel of your seniors.”
“Look at the way and manner you couched your prayers. We can’t grant this. You have to withdraw and refile it. This is a court of record. You’re before the Court of Appeal,” the judge said.
Justice Senchi thereafter announced: “We are sending this case file back for reassignment.”
In its substantive appeal, SERAP contends that the judgment of the FCT High Court was legally and procedurally flawed.
Its Appellant’s Brief of Argument, filed by Oyetibo, raises 24 grounds challenging the finding of liability, the damages awarded and the consequential orders made by the trial court.
SERAP argues that a central question in the case is whether the claimants proved by credible evidence that the allegedly defamatory publications referred to them.
“The publications did not name the respondents, and the descriptions relied upon were general physical descriptions which did not, without more, identify the particular individuals who brought the action,” SERAP said.
The publications followed SERAP’s call on President Bola Tinubu to investigate alleged corruption at the Nigerian National Petroleum Company Limited (NNPCL) and reverse fuel price increases.
SERAP had alleged that DSS officers entered its Abuja office without proper notice and described two of them as “a tall, large, dark-skinned woman” and “a slim, dark-skinned man.”
The organisation argues that neither publication identified the claimants by name, rank, designation, office or photograph.
It also contends that the claimants called no independent witness to establish that an ordinary member of the public read the publications and understood them to refer to the two officers.
“No independent witness was called to establish the alleged identification, while the social-media reactions relied upon by the respondents were not tendered in evidence,” SERAP said.
The group further accused the trial court of supplying what it described as the missing identification link by relying, among other things, on its own observation of the claimants’ physical appearance during proceedings.
“The issue was whether the publications identified the respondents when they were published, not whether the respondents happened to fit the descriptions when they appeared before the court,” it argued.
SERAP also described the ₦100 million damages as excessive and unsupported by sufficient evidence.
It said the trial court relied on claims that the publications affected the officers “mentally and psychologically” and had “gone viral” without evidence showing the extent of publication or any specific professional, financial or reputational injury.
