PHCN Contract: Court Dismisses Gadzama’s Libel Suit Against The Nation

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JK Gadzama, SAN
JK Gadzama, SAN
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PHCN Contract: Court Dismisses Gadzama’s Libel Suit Against The Nation

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).

JK Gadzama, SAN
JK Gadzama, SAN

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.

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