A High Court of the Federal Capital Territory (FCT) in Apo has
dismissed a suit by a lawyer, Joe-Kyari Gadzama (SAN) and his law
firm against The Nation and two others over some stories this
newspapers published about the controversial contracts awarded in
the twilight of the Goodluck Jonathan administration for the
winding up of the Power Holding Company of Nigeria (PHCN).
In a judgment on February 6, Justice Olukayode Adeniyi held that
the plaintiffs- Joe-Kyari Gadzama and J.K. Gadzama LLP – failed to
prove their case of defamation and, therefore, are not entitled to
the reliefs sought.
The judge upheld the defence of qualified privilege led by the
defendants – Vintage Press Limited (publishers of The Nation
newspaper), Mr. Victor Ifijeh (Managing Director/Editor-in-Chief)
and Yusuf Alli (Managing Editor, Northern Operations), through
their lawyer, John Baiyeshea (SAN).
Gadzama and his firm had, in the suit, alleged that the
publications contained in the June 15 and 18; July 14 and 21, 2015
editions of this newspaper were false, malicious, scandalous and
defamatory of their reputation.
They prayed the court to, among others, declare the publications
as false, malicious and defamatory of their reputation; order
perpetual injunction restraining the defendants from further
publishing such reports against them and a publication of
retraction and apologies in five national dailies.
The plaintiffs equally prayed the court for N950million in
exemplary damages, N500million in general damages and N50million as
cost of the suit.
After a thorough analysis of evidence led by parties, Justice
Adeniyi held, among others, that although the defendants did not
deny making the publications the plaintiffs complained about, the
publications did not defame the plaintiffs as they did not contain
all the ingredients required to sustain a defamatory suit.
The judge held that, as against the plaintiffs’ claim that the
publications were directed at them, they (publications) were
actually about the row between BPP and BPE (two government
agencies) and the expenditure of public funds, in the award of a
N1.45billion contract by BPE in 2015 for the liquidation of
PHCN.
Justice Adeniyi noted that the questions that would immediately
agitate the mind of any reasonable person, who read the totality of
the publications complained of, would include whether the contract
was awarded to the plaintiffs; whether the money contained in the
publications were actually paid to the plaintiffs and whether PHCN
had ceased to exist as at when the contract was awarded.
On the first question, the judge held that even from the
evidence provided by the plaintiffs, it was clear that a contract
for legal advisory services for the liquidation of PHCN at amount
not exceeding N929,613,188.94 was awarded to the plaintiffs.
On the second issue, the judge held that, as at the time of the
publications, the plaintiffs could be said to have potentially
earned the fees since it is their case that the contract was
approved by the appropriate authority and was signed off by a
personality of no less than ex-President Goodluck Jonathan.
According to the judge, if that was the case, then it could be
further presumed that as long as the plaintiffs provided the legal
services in accordance with the stipulations in the contract
(Exhibit P10), the fee of about N929million was as good as earned
by them.”
On the third question, the judge noted that even though the
plaintiffs claimed to have secured an order of court to formally
wind up PHCN on July 1, 2015 after the newspaper had published that
PHCN had ceased to exist, it was a generally known that PHCN had
ceased to exist as at when the publications were made.
The judge said: “In the eyes of a layman, PHCN at the material
time, was no longer in operation, but was only in existence on
paper. I must hold that the state of affairs of PHCN at this
period, was a notorious fact, of which the court is entitled to
take judicial notice.
“I do not suppose that the defendants required to tender a court
order dissolving PHCN, as argued by the plaintiffs’ learned
counsel, when it was common knowledge and a notorious fact, at that
material time, the entity known as PHCN was, in actual fact,
non-operational.”
Justice Adeniyi noted that in deciding a case like this, the
position of the law is that the question as to whether the words
complained of are, in fact, defamatory of the plaintiff, is a
matter the judge can decide on the evidence adduced in support of
the complaint; whether they are capable of referring to the
plaintiff as well as capable of conveying defamatory meaning in the
minds of reasonable persons in the circumstances of the particular
case.
He said: “My finding therefore, on the basis of the analysis in
the foregoing, is that a reasonable man that is armed with the
totality of the facts and information at the disposal of the
defendants, as of the time of the publications complained of in
Exhibits P11 – P14 were published, will not construe or regard such
publications as defamatory of the plaintiffs.
“It is also found as a fact indeed, that the said legal advisory
services contract awarded by the BPE (Bureau of Public Enterprises)
to the 2nd plaintiff (JK Gadzama LLP) was valued at N929,613,188.94
even though it is not correct that, at the material time when the
publication was made, there was evidence of actual payment of the
amount to the plaintiffs.
“I therefore hold that the fact that the defendants claimed that
a certain amount in legal fees was paid to the plaintiffs when it
was not, in fact, paid at the material time, does not make the
untrue statement defamatory of the plaintiffs in their professional
reputation, in the estimation of a reasonable person, who is
availed of all the facts and circumstances.
“I further hold that the reference to the legal fees (paid to
the plaintiffs for the contract) as ‘curious’ by the defendants in
the publications, represents a fair conclusion that any reasonable
person, who read the totality of the publications would come to,
particularly taking into account the emphatic content of the press
release issued by BPP (Bureau of Public Procurement), Exhibit
D3.
“Again, I do not see how being referred to as ‘PDP lawyer’ in
the publications was defamatory of the 1st plaintiff (Gadzama) or
occasioned malice. The 1st plaintiff did not deny that he was a
lawyer to the Peoples Democratic Party (PDP) at the material time.
He, in fact confirmed this position under cross-examination by the
defendants’ learned senior counsel.
“I therefore fail to see how the publication insinuated that the
winding-up contract was awarded to the plaintiffs just because they
happened to have professional relationship with the PDP at the
material time, as canvassed by the plaintiffs’ learned counsel. But
then, even if that was the situation, I fail to see how that
statement conveyed any defamatory connotation.
“It is my firm view that a reasonable person, who read the words
complained of by the plaintiffs, in the context of the totality of
the circumstances of the entire publications; and armed with the
documentary evidence – Exhibits P10, D2 and D3 – respectively,
would easily read in between the lines and come to a fair
conclusion that the words were not defamatory of the plaintiffs,”
the judge said.
Justice Adeniyi faulted the evidence by the five witnesses
called by the plaintiffs, which he said were contradictory in their
claim that the publication defamed the 1st plaintiff, but yet still
described him in glowing terms.
The judge noted that the implication is that the testimonies of
the entire plaintiffs’ witnesses were self-contradictory. He noted
that, in one breath they described him in glowing terms, and in
another breath they stated that the plaintiffs’ reputations were
lowered in their estimation.
The judge noted that, by describing Gadzama as a life bencher in
their statement on oath, only to deny knowing what a life bencher
means under cross-examination, it was clear that the claim by the
plaintiff’s 2nd and 3rd witnesses that the publications defamed the
defendants was forced on them and not a product of their individual
assessment,
Justice Adeniyi particularly noted that the plaintiffs’ 5th
witness, Abel Ozioko (a lawyer) was “a tainted witness, who had a
purpose and vested interest to serve, and whose testimony must be
received with a pinch of salt.
“It is interesting to note that the name of the said Abel Ozioko
Esq appears in appendixes D and F to the contract tendered by the
1st plaintiff as Exhibit P10, as one of the key personnel and one
of the consultants, led by the 1st plaintiff, involved in the said
contract between BPE and the 2nd plaintiff. I therefore attach no
credibility to the totality of the testimony of PW5.
“To further exemplify the insecurity and bad faith of the
plaintiffs’ witnesses, whilst they all claimed to have seen and
read each of the alleged libelous publications published by the
defendants on June 15, June 18, July 14 and July 21, 2015; they
however found it convenient to deny, under cross examination, not
to have seen and read the 1st plaintiff’s rebuttal, published by
the defendants with equal prominence a few days later in the
edition of The Nation newspaper of July 28, 2015 (Exhibit D4).
“In the final analysis, I find and hold that the plaintiffs have
failed to establish a very crucial ingredient in order to prove
their action against the defendants, in that, they have failed to
satisfy the court that the publications complained of, in their
ordinary meaning, conveyed any iota of defamatory connotations of
and concerning them.
“These being the case, I further hold that the defendants are
completely exonerated from any legal liability and therefore, the
questions of retraction, apology, perpetual injunction and damages
claimed by the plaintiffs do not arise and cannot be maintained in
the circumstances,” the judge said.
In upholding the defendants’ defence of qualified privilege,
Justice Adeniyi noted that parties agreed on the fact that the
publication complained of related to matters of public interest, on
which the defendants were entitled to comment and which plaintiffs’
witnesses were also entitled to receive.
The judge said: “It has also long been established that the
defence of qualified privilege will only avail a person where the
report or publication is shown to be ”fair and accurate”, that is
to say that it is substantially accurate, without necessarily being
exactly in word for word of what transpired. See Iloabachie Vs.
Iloabachie [2005] 13 NWLR (Pt. 943) 695; Emeagwara Vs. Star
Printing &Pub. Co. Ltd. [2000] 10 NWLR (Pt.676) 489(SC).
“Now, I do not suppose that parties are in dispute that the
Defendant are qualified and entitled to plead the defence qualified
privilege in the first place. Apart from the extensive pleading on
this point in paragraph 7 of the Defendants’ joint statement of
Defence, the 3rd Defendant also testified along the same lines,
that the 1st Defendant had a duty to inform the citizens of the
nation on matters c public interest.
“The 3rd Defendant further testified that the news item
complained of bordered on how public fund was being spent by a
public institution; and as such qualified as a public interest
story of which the Defendants are entitled to publish in line with
their legal, social and / or moral duty to the public.
“Evidence elicited from the entire Plaintiffs’ witnesses under
cross-examination by the Defendants’ learned senior counsel
revealed that the they were all in agreement that public funds were
involved in the disagreement between BPE and BPP and that members
of the public were entitled to know what happened to public
funds.
“That being the case, it becomes settled that the defendants
were lawfully entitled, in the circumstances, to plead and rely on
the defence of qualified privilege. The question then arises as to
whether the defence availed for them in the circumstances of the
present case?
“I have found as a fact earlier on that the only aspect of the
publications that was not true, was the statement that the
plaintiffs had been paid the contract sum at the material time,
which was proved not to be exactly so.
“However, as correctly submitted by the learned senior counsel
for the defendants, even if this were to be the true situation, the
defence of qualified privilege will still avail for the defendants,
except the plaintiffs are able to prove conclusively that the
statement was actuated by malice.
“As correctly submitted by the defendants’ learned counsel, the
plaintiffs failed to discharge the burden on them to establish that
the untrue statement made by the defendants that an amount in
excess of N900m as fees were paid to the plaintiffs at the material
time, when it was not so, was reckless or actuated by malice.
“In the present case, I have found and been satisfied that the
defendants made out a case of qualified privilege in the
circumstances of this case. However, as correctly submitted by the
defendants’ learned senior counsel, even though the plaintiffs
filed a reply to the joint statement of defence of the defendants,
they failed to raise the issue of malice. This indeed, is fatal to
the case of the plaintiffs.
The judge also claimed that THE NATION was fair in bringing to
the public that the BPP and a former Attorney-General of the
Federation, Mohammed Bello Adoke(SAN) described the contract for
legal services was unnecessary.
He added: “What is clear from this letter, by my understanding,
is that the BPP did not agree to the purported legal advisory
services contract for the liquidation of PHCN sought to be awarded
by BPE and failed to give the required approval since it did not
enjoy the support of the Hon. Attorney-General of the Federation at
the material time, in that the Attorney-General was of the view
that the liquidation of PHCN was merely “notional”, and as such
legal advisory services was unnecessary.”
The judge dismissed the application on all grounds.
“In the final analysis, what the court had demonstrated, through
the evidence led on record and the totality of the circumstances of
this case, is that on the one hand, the publications complained of
by the plaintiffs were not defamatory of them; and on the other
hand, if it were to be beheld otherwise that the publications were
defamatory, the defence of qualified privilege, successfully made
out by the defendants, in the absence of evidence of malice,
completely exonerated them from liability for libel.
“The final result therefore, is that the case of the plaintiffs
must and hereby fails in its entirety. It is accordingly dismissed.
Parties are to bear their costs,” Justice Adeniyi said.
Source: TheNation
A High Court of the Federal Capital Territory (FCT) in Apo has
dismissed a suit by a lawyer, Joe-Kyari Gadzama (SAN) and his law
firm against The Nation and two others over some stories this
newspapers published about the controversial contracts awarded in
the twilight of the Goodluck Jonathan administration for the
winding up of the Power Holding Company of Nigeria (PHCN).
In a judgment on February 6, Justice Olukayode Adeniyi held that
the plaintiffs- Joe-Kyari Gadzama and J.K. Gadzama LLP – failed to
prove their case of defamation and, therefore, are not entitled to
the reliefs sought.
The judge upheld the defence of qualified privilege led by the
defendants – Vintage Press Limited (publishers of The Nation
newspaper), Mr. Victor Ifijeh (Managing Director/Editor-in-Chief)
and Yusuf Alli (Managing Editor, Northern Operations), through
their lawyer, John Baiyeshea (SAN).
Gadzama and his firm had, in the suit, alleged that the
publications contained in the June 15 and 18; July 14 and 21, 2015
editions of this newspaper were false, malicious, scandalous and
defamatory of their reputation.
They prayed the court to, among others, declare the publications
as false, malicious and defamatory of their reputation; order
perpetual injunction restraining the defendants from further
publishing such reports against them and a publication of
retraction and apologies in five national dailies.
The plaintiffs equally prayed the court for N950million in
exemplary damages, N500million in general damages and N50million as
cost of the suit.
After a thorough analysis of evidence led by parties, Justice
Adeniyi held, among others, that although the defendants did not
deny making the publications the plaintiffs complained about, the
publications did not defame the plaintiffs as they did not contain
all the ingredients required to sustain a defamatory suit.
The judge held that, as against the plaintiffs’ claim that the
publications were directed at them, they (publications) were
actually about the row between BPP and BPE (two government
agencies) and the expenditure of public funds, in the award of a
N1.45billion contract by BPE in 2015 for the liquidation of
PHCN.
Justice Adeniyi noted that the questions that would immediately
agitate the mind of any reasonable person, who read the totality of
the publications complained of, would include whether the contract
was awarded to the plaintiffs; whether the money contained in the
publications were actually paid to the plaintiffs and whether PHCN
had ceased to exist as at when the contract was awarded.
On the first question, the judge held that even from the
evidence provided by the plaintiffs, it was clear that a contract
for legal advisory services for the liquidation of PHCN at amount
not exceeding N929,613,188.94 was awarded to the plaintiffs.
On the second issue, the judge held that, as at the time of the
publications, the plaintiffs could be said to have potentially
earned the fees since it is their case that the contract was
approved by the appropriate authority and was signed off by a
personality of no less than ex-President Goodluck Jonathan.
According to the judge, if that was the case, then it could be
further presumed that as long as the plaintiffs provided the legal
services in accordance with the stipulations in the contract
(Exhibit P10), the fee of about N929million was as good as earned
by them.”
On the third question, the judge noted that even though the
plaintiffs claimed to have secured an order of court to formally
wind up PHCN on July 1, 2015 after the newspaper had published that
PHCN had ceased to exist, it was a generally known that PHCN had
ceased to exist as at when the publications were made.
The judge said: “In the eyes of a layman, PHCN at the material
time, was no longer in operation, but was only in existence on
paper. I must hold that the state of affairs of PHCN at this
period, was a notorious fact, of which the court is entitled to
take judicial notice.
“I do not suppose that the defendants required to tender a court
order dissolving PHCN, as argued by the plaintiffs’ learned
counsel, when it was common knowledge and a notorious fact, at that
material time, the entity known as PHCN was, in actual fact,
non-operational.”
Justice Adeniyi noted that in deciding a case like this, the
position of the law is that the question as to whether the words
complained of are, in fact, defamatory of the plaintiff, is a
matter the judge can decide on the evidence adduced in support of
the complaint; whether they are capable of referring to the
plaintiff as well as capable of conveying defamatory meaning in the
minds of reasonable persons in the circumstances of the particular
case.
He said: “My finding therefore, on the basis of the analysis in
the foregoing, is that a reasonable man that is armed with the
totality of the facts and information at the disposal of the
defendants, as of the time of the publications complained of in
Exhibits P11 – P14 were published, will not construe or regard such
publications as defamatory of the plaintiffs.
“It is also found as a fact indeed, that the said legal advisory
services contract awarded by the BPE (Bureau of Public Enterprises)
to the 2nd plaintiff (JK Gadzama LLP) was valued at N929,613,188.94
even though it is not correct that, at the material time when the
publication was made, there was evidence of actual payment of the
amount to the plaintiffs.
“I therefore hold that the fact that the defendants claimed that
a certain amount in legal fees was paid to the plaintiffs when it
was not, in fact, paid at the material time, does not make the
untrue statement defamatory of the plaintiffs in their professional
reputation, in the estimation of a reasonable person, who is
availed of all the facts and circumstances.
“I further hold that the reference to the legal fees (paid to
the plaintiffs for the contract) as ‘curious’ by the defendants in
the publications, represents a fair conclusion that any reasonable
person, who read the totality of the publications would come to,
particularly taking into account the emphatic content of the press
release issued by BPP (Bureau of Public Procurement), Exhibit
D3.
“Again, I do not see how being referred to as ‘PDP lawyer’ in
the publications was defamatory of the 1st plaintiff (Gadzama) or
occasioned malice. The 1st plaintiff did not deny that he was a
lawyer to the Peoples Democratic Party (PDP) at the material time.
He, in fact confirmed this position under cross-examination by the
defendants’ learned senior counsel.
“I therefore fail to see how the publication insinuated that the
winding-up contract was awarded to the plaintiffs just because they
happened to have professional relationship with the PDP at the
material time, as canvassed by the plaintiffs’ learned counsel. But
then, even if that was the situation, I fail to see how that
statement conveyed any defamatory connotation.
“It is my firm view that a reasonable person, who read the words
complained of by the plaintiffs, in the context of the totality of
the circumstances of the entire publications; and armed with the
documentary evidence – Exhibits P10, D2 and D3 – respectively,
would easily read in between the lines and come to a fair
conclusion that the words were not defamatory of the plaintiffs,”
the judge said.
Justice Adeniyi faulted the evidence by the five witnesses
called by the plaintiffs, which he said were contradictory in their
claim that the publication defamed the 1st plaintiff, but yet still
described him in glowing terms.
The judge noted that the implication is that the testimonies of
the entire plaintiffs’ witnesses were self-contradictory. He noted
that, in one breath they described him in glowing terms, and in
another breath they stated that the plaintiffs’ reputations were
lowered in their estimation.
The judge noted that, by describing Gadzama as a life bencher in
their statement on oath, only to deny knowing what a life bencher
means under cross-examination, it was clear that the claim by the
plaintiff’s 2nd and 3rd witnesses that the publications defamed the
defendants was forced on them and not a product of their individual
assessment,
Justice Adeniyi particularly noted that the plaintiffs’ 5th
witness, Abel Ozioko (a lawyer) was “a tainted witness, who had a
purpose and vested interest to serve, and whose testimony must be
received with a pinch of salt.
“It is interesting to note that the name of the said Abel Ozioko
Esq appears in appendixes D and F to the contract tendered by the
1st plaintiff as Exhibit P10, as one of the key personnel and one
of the consultants, led by the 1st plaintiff, involved in the said
contract between BPE and the 2nd plaintiff. I therefore attach no
credibility to the totality of the testimony of PW5.
“To further exemplify the insecurity and bad faith of the
plaintiffs’ witnesses, whilst they all claimed to have seen and
read each of the alleged libelous publications published by the
defendants on June 15, June 18, July 14 and July 21, 2015; they
however found it convenient to deny, under cross examination, not
to have seen and read the 1st plaintiff’s rebuttal, published by
the defendants with equal prominence a few days later in the
edition of The Nation newspaper of July 28, 2015 (Exhibit D4).
“In the final analysis, I find and hold that the plaintiffs have
failed to establish a very crucial ingredient in order to prove
their action against the defendants, in that, they have failed to
satisfy the court that the publications complained of, in their
ordinary meaning, conveyed any iota of defamatory connotations of
and concerning them.
“These being the case, I further hold that the defendants are
completely exonerated from any legal liability and therefore, the
questions of retraction, apology, perpetual injunction and damages
claimed by the plaintiffs do not arise and cannot be maintained in
the circumstances,” the judge said.
In upholding the defendants’ defence of qualified privilege,
Justice Adeniyi noted that parties agreed on the fact that the
publication complained of related to matters of public interest, on
which the defendants were entitled to comment and which plaintiffs’
witnesses were also entitled to receive.
The judge said: “It has also long been established that the
defence of qualified privilege will only avail a person where the
report or publication is shown to be ”fair and accurate”, that is
to say that it is substantially accurate, without necessarily being
exactly in word for word of what transpired. See Iloabachie Vs.
Iloabachie [2005] 13 NWLR (Pt. 943) 695; Emeagwara Vs. Star
Printing &Pub. Co. Ltd. [2000] 10 NWLR (Pt.676) 489(SC).
“Now, I do not suppose that parties are in dispute that the
Defendant are qualified and entitled to plead the defence qualified
privilege in the first place. Apart from the extensive pleading on
this point in paragraph 7 of the Defendants’ joint statement of
Defence, the 3rd Defendant also testified along the same lines,
that the 1st Defendant had a duty to inform the citizens of the
nation on matters c public interest.
“The 3rd Defendant further testified that the news item
complained of bordered on how public fund was being spent by a
public institution; and as such qualified as a public interest
story of which the Defendants are entitled to publish in line with
their legal, social and / or moral duty to the public.
“Evidence elicited from the entire Plaintiffs’ witnesses under
cross-examination by the Defendants’ learned senior counsel
revealed that the they were all in agreement that public funds were
involved in the disagreement between BPE and BPP and that members
of the public were entitled to know what happened to public
funds.
“That being the case, it becomes settled that the defendants
were lawfully entitled, in the circumstances, to plead and rely on
the defence of qualified privilege. The question then arises as to
whether the defence availed for them in the circumstances of the
present case?
“I have found as a fact earlier on that the only aspect of the
publications that was not true, was the statement that the
plaintiffs had been paid the contract sum at the material time,
which was proved not to be exactly so.
“However, as correctly submitted by the learned senior counsel
for the defendants, even if this were to be the true situation, the
defence of qualified privilege will still avail for the defendants,
except the plaintiffs are able to prove conclusively that the
statement was actuated by malice.
“As correctly submitted by the defendants’ learned counsel, the
plaintiffs failed to discharge the burden on them to establish that
the untrue statement made by the defendants that an amount in
excess of N900m as fees were paid to the plaintiffs at the material
time, when it was not so, was reckless or actuated by malice.
“In the present case, I have found and been satisfied that the
defendants made out a case of qualified privilege in the
circumstances of this case. However, as correctly submitted by the
defendants’ learned senior counsel, even though the plaintiffs
filed a reply to the joint statement of defence of the defendants,
they failed to raise the issue of malice. This indeed, is fatal to
the case of the plaintiffs.
The judge also claimed that THE NATION was fair in bringing to
the public that the BPP and a former Attorney-General of the
Federation, Mohammed Bello Adoke(SAN) described the contract for
legal services was unnecessary.
He added: “What is clear from this letter, by my understanding,
is that the BPP did not agree to the purported legal advisory
services contract for the liquidation of PHCN sought to be awarded
by BPE and failed to give the required approval since it did not
enjoy the support of the Hon. Attorney-General of the Federation at
the material time, in that the Attorney-General was of the view
that the liquidation of PHCN was merely “notional”, and as such
legal advisory services was unnecessary.”
The judge dismissed the application on all grounds.
“In the final analysis, what the court had demonstrated, through
the evidence led on record and the totality of the circumstances of
this case, is that on the one hand, the publications complained of
by the plaintiffs were not defamatory of them; and on the other
hand, if it were to be beheld otherwise that the publications were
defamatory, the defence of qualified privilege, successfully made
out by the defendants, in the absence of evidence of malice,
completely exonerated them from liability for libel.
“The final result therefore, is that the case of the plaintiffs
must and hereby fails in its entirety. It is accordingly dismissed.
Parties are to bear their costs,” Justice Adeniyi said.
Source: TheNation
Read more https://nairalaw.com/phcn-contract-court-dismisses-gadzamas-libel-suit-against-the-nation/