Tuesday, May 2, 2017 5:22 pm
TheNEWS and PM NEWS win cases against Kefas Gazama and Dr B.A.N Nwakoby, the Chief Medical Director of the University Teaching Hospital, Enugu, UNTH
In recent times, TheNEWS magazine and PMNEWS, published by Independent Communications Network Limited, have won two cases. First, Hounorable Justice Okwobi sitting at Court 4 of the Lagos High Court, Ikeja, on the 28th of April 2017, dismissed the libel suit filed by Kefas Gazama (retired Commissioner of Police) against the two publications and awarded the cost of N200,000 against the claimant.
Also, TheNEWS was vindicated by its victory in an appeal filed by Dr B.A.N Nwakoby, the Chief Medical Director of the University Teaching Hospital, Enugu, UNTH, against the 1 December 2006 judgement of Justice C.C. Nweze (as he then was) of the Enugu High Court.
On the first case, Mr Gazama, then a Commissioner of Police, had sought the permission of the IG of Police to commence the libel suit against the defendants in 2009. He claimed he was libeled by the story published in TheNEWS magazine of 4th March 2009 on page 31 and 32 and PM NEWS of 25 February 2009 and 26th February 2009.
The stories alleged that Mr Gazama, then the Commissioner of Police in charge of the Federal Special Anti Robbery Squad, Force Criminal Investigation Department, was arrested by plain clothes policemen following petitions written against him across the country. The story further stated that Gazama extorted money from a 70- year old man, one Chief Patrick Okolie. The story stated that on the 29th of January 2009, the investigating police officer (IPO), Mr Paul Omerebakhau, then a Deputy Superintendent of Police, demanded N25,000 bribe for Gazama before Chief Okolie could get bail. Out of the N25,000, Gazama was alleged to have collected N50,000 while his team got N45,000. But unknown to Gazama and his cohorts, video recording of the events was being taken by Chief Okolie. Another video clip reveals how the sum of N2 million was shared between Gazama and his group.
Mr Gazama sued the defendant for the sum of N250 million as general damages for the publication of the libelous words. He also called for an unreserved apology from the defendants which he wanted published in three national newspapers, including The Guardian, ThisDay and The Punch.
The learned trial judge evaluated the evidence advanced by the parties. The claimant in person and one other person testified in favour of the claimant. They claimed the story was totally false. He was never arrested and Police only arrested Chief Okolie on the basis of the petition written against him by one Harrison A.V, a lawyer and in the course of the investigation, the old man was detained. He never collected any bribe from anybody. He stated that the story destroyed his image. He stated he wrote to the defendants to retract the story but they refused. His other witness, one Mr Scott Kunle, stated that he was shocked when he heard and read the story. He stated that if what the magazine and the newspaper published were true, he would find it very hard to continue to relate with the claimant because of his standing in the society.
The defendants on the other hand called one witness, Mr Jide Otitoju. His counsel, Mr Benjamin Umudjoro, stated that he was the Senior Editor of the magazine at the time the stories were published. Umudjoro testified further that the story was justified because he saw a video clip of Chief Okolie offering bribe to the IPO. He stated that though the claimant took one year standing leave to attend the law school, he still signed the report of the investigation on Chief Okolie while he was supposed to be on leave.
Mr Otitoju shocked the court when he revealed that the original petition made by Mr Harrison did not include Chief Okolie yet he was arrested and paraded before the media as a gun runner. The charge against him was amended to include armed robbery and gun running so that he might not be granted bail. Mr Otitoju also informed the court that the O.C in charge of the legal department stated that the report recommending Chief Okolie for trial did not emanate from his office. The report from Ministry of Justice put the nail on the head of Gazama. The report which was tendered stated that no proof of evidence backed the charge proferred by Mr Gazama and his team against Chief Okolie.
In her judgement, Honourable Justice Okwobi held that there were three uncontestable points arising from the evidence addressed by the parties. They are:
(1) That the stories were published in PM NEWS and TheNEWS
(2) The stories referred to the claimant
(3) The claimant signed the report of the investigation on Chief Okolie while on study leave at the Nigerian Law School.
She held that the stories, by her assessment, were libelous. She however upheld the defence of qualified privilege put up by the defendants. She relied on the decision of the Supreme Court in the case of Mammar Vs Sulaudeen (2005) to NWLP (st 945) at 510 to 511 when the Supreme Court held that a privileged occasion is in reference to qualified privilege. It is an occasion where two entities make a communication and they have an interest or a duty, whether legal, social or moral, to make it to the person to whom it is made and the person to whom it is so made has a corresponding interest or duty to receive it.
On this foundation, the trial judge held that the defendants have pleaded the defence of qualified privilege and having testified to the fact that they published the story without malice and in public interest, they are availed by the defence of qualified privilege. She explained that by the provision of section 22 and 39 of the 1999 Constitution, they have a duty to inform members of the public on matters of public interest and the members of the public have a corresponding duty to record same, especially on the claimant (Mr Gazama) who acted in the manner that suggests that he had personal interest in persecuting a citizen of this country, Chief Okolie, a 70-year old man.
She stated that the claimant did not respond to the defence of qualified privilege as he refused to give a reply to the defendants’ defence, pursuant to order 15 rule 17 (2) of the High Court of Lagos State (civil procedure) rule 2012.
She added that only evidence of malice could defeat the defence of qualified privilege which the claimant have failed to address and prove.
She dismissed the suit and awarded the defendants the sum of N200,000 as cost of prosecuting the matter.
Mr Benjamin Umudjoro, counsel to the defendants, thanked the trial judge for a well considered judgement. He told TheNEWS that this is a victory for the press. The press is by this judgement emboldened to publish and highlight ills of our society and public officials.
On the second case, TheNEWS was victorious in the appeal filed by Dr B.A.N Nwakoby, the Chief Medical Director of the University Teaching Hospital, Enugu, UNTH, against the 1 December 2006 judgement of Justice C.C. Nweze (as he then was) of the Enugu High Court. The appellant was challenging the judgement of Nweze where he dismissed the claim of Nwakoby at the lower court that TheNEWS libeled him. The appellant had complained about a story that was published in TheNEWS of 15th April 2002, with the headline “ENUGU/UNTH’s Boss in Theft Scandal.”
The story reads: “Unless his lawyer succeeds in proving his innocence beyond reasonable doubt, the Chief Medical Director of the University Teaching Hospital, Enugu, UNTH, Dr B.A.N Nwakoby may soon be on his way to gaol. What is the big deal about gaol you may want to ask, considering the fact that almost all celebrated names in Nigeria – from the late sage, Chief Obafemi Awolowo, Chief Gani Fawehinmi to our President Chief Olusegun Obasanjo have been in and out of the place.
The only difference however is that Nwakoby’s march to prison, except it is averted, has nothing to do with human rights activism or charges of treasonable felony. The medical practitioner was alleged to have colluded with four others to steal about N800,000 belonging to the National Insurance Corporation of Nigeria, NICON.
He and four others, Jonathan Obasi, a staffer of NICON; Ferdinand Maduka, an Assistant Director of Finance with UNTH; Maxwell Ezepue, cashier with UNTH and Boniface Ekulu also a staffer of UNTH, have been dragged to Enugu Magistrate Court II. The alleged stolen amount, Across Nigeria learnt, represented the accruable amount to NICON as Insurance premium from UNTH.
The amount was said to have been given to Ekulu (the cashier) by UNTH management for onward transmission to NICON, but along the line, the money was said to have suddenly disappeared. The insurers, determined to recover their money, referred the case to the police that later arrested the culprit as well as other top management staff including the chief medical director.”
According to Banjamin Umudjoro, TheNEWS counsel: “On our own part, we obtained a certified true copy of the charge sheet showing his name and the allegation tendered and admitted in evidence at the trial at the High Court. For three appearances at Magistrate court when he was charged, he was called on the three occasions.”
On the third hearing, a nolle prosequi was, according to the lawyer, entered by the Enugu State attorney general to terminate the charge. Umudjoro continued: “Our argument was that if he was not charged, a nolle would not have been entered to terminate the case. We also argued at the High Court that we were availed by the defence of qualified privilege (this arises when the publishers of a document have a corresponding duty to inform the public). In other words, once that is done, we have a duty to publish on matters of public interest.” Once the defender pleads this, the onus, according to Umudjoro, will shift to the plaintiff to show that the defendant (TheNEWS) published with malice.
At the High Court, therefore, the case was, on 1 December 2006, dismissed by Justice C.C. Nweze who is now a judge at Supreme Court. In his judgment, Justice C.C. Nweze stated that the story by TheNEWS was fair and an accurate report of court proceedings. The issue of nolle proseque was not reported because at the time of filling the report, the nolle had not been entered by the court. Therefore, Justice Nweze stated that the story could not be said to be inaccurate because the nolle was not reported.
He also stated that the defendants could be availed by the defense of qualified privilege. He defined this as: ‘‘A communication is said to be made in a privileged occasion when a person, in discharged of some public or private duty (legal, social, or moral) honestly makes it a subject matter which he has an intention to another person who has a correspond duty to receive it.’’ He relied on the case, Iloabachie against Phillips.