The Court of Appeal in Abuja on Tuesday returned the case files in two appeals arising from a N101 million defamation judgment in favour of two operatives of the Department of State Services (DSS) to the Presiding Judge for reassignment.
The appeals were filed by the Incorporated Trustees of the Socio-Economic Rights and Accountability Project (SERAP) and by its Deputy Director, Kolawole Ogundare. The High Court of the Federal Capital Territory (FCT) awarded the damages in May.
The panel had earlier heard the first appeal and reserved judgment. It later vacated that order, ruling that the two appeals, which emanated from one judgment, should be heard together for a composite judgment.
The development was the second setback in the matter. Last week, proceedings in Ogundare’s appeal were halted midway.
Before the panel vacated its order, a brief drama played out when SERAP’s lead counsel, Tayo Oyetibo, SAN, told the court that an application was pending for certain persons to be joined as amici curiae (friends of the court).
Prof Olarewaju Fagbohun, SAN, a former Vice-Chancellor of the University of Lagos, rose to address the panel.
He said he appeared for the Columbia Global Freedom of Expression Initiative of Columbia University and for the United Nations Special Rapporteurs on the rights to freedom of peaceful assembly and of association, and to freedom of opinion and expression.
He said the application, filed on October 12 under 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 Hon court to participate in this appeal and assist the court with independent submissions,” he said.
He added that the proposed brief would offer independent legal analysis and relevant comparative and international jurisprudence.
The panel’s lead judge, Justice Danlami Senchi, was unimpressed. “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?” he asked.
He added: “I said earlier that we are not here to speak long grammar or waste the court’s time. We didn’t seek for any assistance.”
Fagbohun replied: “We are not adversarial. We’re actually trying to assist this court.”
Justice Senchi said every matter is decided on its merits and that an outsider could be heard only if its interests would be injured. “But you’re not a party in the lower court and in this court,” he said, asking the professor to withdraw the application “so that we can make progress.”
Fagbohun withdrew the application and apologised to the court. The judge commended him: “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.
The panel then turned to Ogundare’s appeal, the same one that stalled last Friday.
Midway into the hearing of an application for enlargement of time by the appellant’s counsel, Oluwatosin Adesoye, the court voiced displeasure with his presentation, saying 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,” Justice Senchi said. “This is a court of record. You’re before the Court of Appeal.”
The judge then announced: “We are sending this case file back for reassignment.”
In its appeal, SERAP argues that the judgment was legally and procedurally flawed. Its Appellant’s Brief of Argument, filed by Oyetibo, raises 24 grounds challenging the finding of liability, the damages and the consequential orders.
The group says the central question is whether the claimants proved by credible evidence that the 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, describing two of them as “a tall, large, dark-skinned woman” and “a slim, dark-skinned man.”
SERAP argues that neither publication identified the claimants by name, rank, designation, office or photograph. It adds that the claimants called no independent witness to show 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,” the group said.
SERAP also accuses the trial court of supplying 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 said.
The group further describes the ₦100 million damages as excessive and unsupported by sufficient evidence. It says the trial court relied on claims that the publications affected the officers “mentally and psychologically” and had “gone viral,” without evidence of the extent of publication or of specific professional, financial or reputational injury.
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