The Court of Appeal in Calabar has fixed a hearing for Thursday in the case by Vintage Press Limited (publishers of The Nation) and Chief Basil Otamiri.
The suit is numbered CA/C/232M/2023.
A hearing notice issued by the court yesterday reads: “Take notice that the above-mentioned appeal will be listed for hearing before the Court of Appeal sitting at Calabar on Thursday the 26th day of September 2024 at the hour of 9a, in the forenoon.”
The plaintiff, Chief Otamiri, claimed that a publication by this newspaper was defamatory to him.
The publication was a “Wanted Person” advertorial sponsored by the Rivers Police Command.
The publication stated that Otamiri was declared wanted in connection with a case of murder and asked anyone with useful information to contact the police.
In a judgment by the Cross River State High Court, the Chief Judge, Justice Akon Ikpeme, held that the police did not demonstrate that the claimant was wanted in a case of murder.
He held that the police “never came to court to state their side of the evidence.”
This, he held, “translates to the fact that the claimant’s evidence before this court remains unchallenged.”
Justice Ikpeme held that there was nothing before him to show that the claimant was charged with murder.
“I find that by the evidence before me, the claimant has convinced this court that he was never involved in the murder of anybody,” the Chief Judge said.
He held that the publication was, therefore, malicious.
The CJ awarded N8 million damages against the defendants “jointly” for the publication.
He also awarded “exemplary or punitive damages” of N2 million “against the defendants jointly”.
The judgment was delivered on January 23, 2023.
On August 16, 2023, Vintage Press filed a notice of appeal at the Court of Appeal, Calabar Division.
This newspaper’s publishers also applied for a stay of execution.
Otamiri could not be served with the processes because his known counsel declined to accept the papers.
His lawyers, Mba Ukweni & Associates, wrote the Court of Appeal, stating: “We have been served by the bailiff of this court with a motion on notice on the above suit (by Vintage Press) dated August 17, 2023, seeking an order to stay execution of the judgment…
“Be informed that…we have not been briefed by the first respondent (Otamiri) to further represent him…”
The law firm returned the motion papers to the Court of Appeal registry.
Further unsuccessful attempts were made to serve Otamiri with the appeal.
On February 22, 2024, the Presiding Justice of the Court of Appeal, Calabar Judicial Division, Uchechukwu Onyemenam, granted an order for substituted service on Otamiri.
The Notice of the Appeal was subsequently pasted at Otamiri’s last known address and published in this newspaper on March 20.
This newspaper later received a garnishee order nisi made on February 9 by a Rivers State Magistrate Court sitting in Port Harcourt in respect of the N10 million awarded to Otamiri.
The order followed a motion ex-parte filed by counsel for the judgment-creditor, Bruno Mbaeri.
The judgment debtors in the garnishee proceedings are Rivers State Police Command, Rivers Commissioner of Police, Public Relations Officer (PRO) of the command Ahmad K. Mohammad and Vintage Press Limited, publishers of The Nation.
Listed as the garnishees are 13 banks.
Chief Magistrate C. G. Ali held: “Garnishee Order Nisi is hereby granted against the garnishees attaching the sum of N10million only or any lesser sum available in the judgment-debtors accounts in the garnishee banks for the satisfaction of the judgment debt in suit no. HC/120/2015 delivered by Hon. Justice Akon. B. Ikpeme on 23rd January 2023 in favour of the judgment-creditor/applicant together with the cost of N200,000 only as the cost of this garnishee proceedings.
“It is ordered that the garnishee banks shall appear before this Honorable Court upon being served with the order nisi to show cause why the judgment-debt and cost of garnishee proceedings or so much available should not be paid to the judgment-creditor/garnishor/applicant for the satisfaction or partial satisfaction of the judgment debt.”
The pending appeal
The garnishee order was made despite the pending appeal by Vintage Press.
The appeal CA/C/232M/2023 was filed on August 16, 2023, by the newspaper’s team of lawyers from Phoenix & Volge LP, including Marc Enamhe, Emmanuel Sani, and others.
The appellant is contending that the CJ erred by misapplying the law when he stated that the suit was not defended.
It argued that the principle relied on by the judge was faulty.
Vintage Press stated that the judge reached an erroneous conclusion that it abandoned its pleadings by not calling a witness during the trial.
“The learned trial court rightly found that the appellant filed a defence, and cross-examined the plaintiff’s witnesses, and had opted to rely on the evidence elicited thereof,” the appellant stated.
Vintage Press also contends that the CJ erred in law when he failed to deliver the judgment within time.
By delaying the judgment, the appellant said the CJ “apparently lost touch of the evidence elicited in the support of the appellant’s defence,” thereby denying it a fair hearing and occasioning a miscarriage of justice.
On the CJ’s finding that Otamiri was falsely accused of murder, Vintage Press’ lawyers argued that the conclusion was erroneously based on the wrong principle of law and negated the appellant’s defence.
“The evidence on record, particularly the tenor of Exhibit 8 (police document declaring Otamiri wanted), clearly shows that the publication was privileged.
“Qualified privilege is a defence to an untrue publication.
“There is no iota of evidence to substantiate malice on the part of the appellant,” Vintage Press stated.
The appellant further argued that the duty of a publisher to investigate or authenticate information before publication cannot be equated with the standard of investigation carried out by the police or the court.
“Exhibit 8 clearly shows that it was duly signed by the appropriate authority, who was duly appointed to act in the capacity of the police force public relations officer,” the appellant stated.
It added: “There is no pleading or evidence on record to show that the appellant nursed a ‘wrongful intention or desire to harm’ the first respondent.
“There is no pleading or scintilla of evidence to support any inference of malice in respect of the appellant.
“The publication as borne out by Exhibit 8 is a standard form police document (praecipe/format) officially used in the declaration of wanted persons.
“There was no input or analysis made in respect of Exhibit 8 by the appellant.
“The appellant owes a public duty to society to make such publication.
“Exhibit 8 constitutes a publication of an official document of a government agency, and not an opinion, commentary, exposition, finding or publication attributable to the appellant.
“The presumption of regularity of official document inure in respect of Exhibit 8.
“The claimant in the court below woefully failed to discharge the burden of proving malice on the part of the defendant.
“It is trite that he who asserts must prove.
“The learned trial court erroneously shifted the burden of proof on the appellant in that regard.”
Otamiri, Rivers State Police Command, Rivers Commissioner of Police and Mohammad are the respondents in the appeal, which is predicated on seven grounds.
The appellant is claiming that the lower court delivered the judgment out of time on January 23, 2023, after several adjournments and “re-adoption” of final addresses by parties.
It stated that when the substantive matter was adjourned for judgment, it was not ready for delivery due to the trial Chief Judge’s official engagements and health reasons.
“The applicant was not put on notice and was not aware that the judgment was eventually delivered.
“When the applicant counsel got wind of the delivery of the judgment, counsel promptly applied for a certified true copy, and it took several weeks before a copy was handed to counsel by the registrar of the court.
