The Court of Appeal in Abuja has ordered the reassignment of two appeals arising from a N101 million defamation judgment against the Socio-Economic Rights and Accountability Project (SERAP) and its Deputy Director, Kolawole Ogundare, following a series of contentious proceedings.
The appellate court on Tuesday returned the case files to the Presiding Judge for reassignment, in a development that marks another twist in the legal battle over the defamation judgment delivered by the High Court of the Federal Capital Territory (FCT) in May.
The appeals were filed separately by SERAP and Ogundare to challenge the judgment, which awarded damages to two operatives of the Department of State Services (DSS).
The panel had initially heard SERAP’s appeal and reserved judgment before reversing its decision. It subsequently ruled that both appeals, having originated from the same judgment, should be heard together to enable the court to deliver a composite judgment.
The latest development followed an earlier disruption last week, when proceedings in Ogundare’s appeal were halted midway.
Court Rejects Applications to Join Appeal as Friends of the Court
Before the panel ordered the reassignment, proceedings were briefly dominated by applications from individuals and organisations seeking permission to participate in the appeal as amici curiae, or friends of the court.
SERAP’s lead counsel, Tayo Oyetibo, SAN, informed the court that an application was pending for certain parties to be admitted in that capacity.
Following the announcement, Olarewaju Fagbohun, a professor and former Vice-Chancellor of the University of Lagos, rose to address the panel.
Fagbohun said he was representing the Columbia Global Freedom of Expression Initiative at Columbia University and the United Nations Special Rapporteurs on the rights to freedom of peaceful assembly and of association, and to freedom of opinion and expression.
He explained that an 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 the court’s permission to participate in the proceedings.
“We’re seeking the leave of this Hon court to participate in this appeal and assist the court with independent submissions,” he said.
According to him, the proposed brief would provide independent legal analysis, alongside relevant comparative and international jurisprudence, to assist the court in determining the issues before it.
However, the panel’s lead judge, Justice Danlami Senchi, questioned the basis for the application, expressing displeasure that the proposed participants had approached the court without an invitation.
“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.
The judge further warned against what he described as unnecessary elaboration, stating: “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.”
In response, Fagbohun maintained that the application was not intended to introduce an adversarial element into the proceedings.
“We are not adversarial. We’re actually trying to assist this court,” he said.
Justice Senchi, however, maintained that cases must be decided on their individual merits, adding that a non-party could be heard where its interests stood to be affected by the outcome.
“But you’re not a party in the lower court and in this court,” the judge told Fagbohun, urging him to withdraw the application “so that we can make progress.”
Fagbohun subsequently withdrew the application and apologised to the court.
Commending his decision, Justice Senchi remarked: “Your juniors here will be happy for that.”
Mojirayo Ogunlana, who appeared on behalf of the Southern African Litigation Centre, also withdrew her application seeking admission as amicus curiae.
Judge Faults SERAP Deputy Director’s Legal Representation
After the applications were withdrawn, the panel proceeded to Ogundare’s appeal, the same matter whose hearing had been interrupted the previous Friday.
The proceedings again encountered difficulties during arguments on an application seeking an enlargement of time, presented by Ogundare’s counsel, Oluwatosin Adesoye.
The panel expressed dissatisfaction with the manner in which the application had been prepared, suggesting that the lawyer should have sought guidance from more experienced colleagues.
Justice Senchi told the counsel that the prayers contained in the application were improperly framed and could not be granted in their existing form.
“Look at the way and manner you couched your prayers. We can’t grant this. You have to withdraw and refile it,” the judge said.
He added: “This is a court of record. You’re before the Court of Appeal.”
The panel subsequently announced its decision to return the case file for reassignment.
“We are sending this case file back for reassignment,” Justice Senchi declared.
SERAP Challenges N101m Award, Questions Identification of DSS Officers
In its appeal, SERAP is challenging the legal and procedural basis of the judgment delivered by the FCT High Court, arguing that the decision was flawed.
The organisation’s Appellant’s Brief of Argument, filed by Oyetibo, contains 24 grounds of appeal challenging the finding of liability, the damages awarded and the consequential orders made by the trial court.
At the centre of SERAP’s case is whether the two DSS operatives established, through credible evidence, that the publications in question referred specifically to them.
The organisation argues that the publications did not identify either claimant by name and that the physical descriptions contained in them were insufficient, on their own, to establish that the officers were the individuals being referred to.
“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 dispute arose from publications following SERAP’s call on President Bola Tinubu to investigate alleged corruption at the Nigerian National Petroleum Company Limited (NNPCL) and reverse increases in fuel prices.
SERAP had alleged that DSS operatives entered its Abuja office without proper notice. In its descriptions of two of the officers, the organisation referred to them as “a tall, large, dark-skinned woman” and “a slim, dark-skinned man.”
SERAP maintains that neither publication identified the claimants by name, rank, designation, official position or photograph.
It also argues that the claimants failed to present an independent witness who could establish that members of the public who read the publications understood them to refer to the two DSS operatives.
“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.
The organisation further accuses the trial court of attempting to fill what it considers a critical gap in the claimants’ evidence by relying, among other things, on its own observation of their physical appearances during the proceedings.
SERAP argues that the relevant question was whether the publications identified the claimants at the time they were published, rather than whether the officers’ appearances matched the descriptions when they subsequently appeared in court.
“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 organisation is asking the appellate court to overturn the judgment, maintaining that the claimants did not sufficiently establish the alleged identification necessary to sustain their defamation case.
With the case files now returned for reassignment, the next stage of the legal battle will depend on the steps taken following the appellate court’s decision.
Source – Vanguard
