The Socio-Economic Rights and Accountability Project (SERAP) on Tuesday suffered another setback in its appeal against a N101 million defamation judgment delivered in May by a High Court of the Federal Capital Territory (FCT) in favour of two operatives of the Department of State Services (DSS).
The development prompted a special panel of the Court of Appeal, constituted by the President of the Court of Appeal (PCA), to return one of the case files for reassignment.
Tuesday’s proceedings marked the second setback for SERAP in less than a week. Last Friday, the failure of the non-governmental organisation (NGO) to file a required application forced a three-member panel, whose members had travelled to Abuja to hear the appeal, to adjourn the matter until Tuesday.
However, after more than an hour of proceedings, during which the panel struggled to make sense of an application presented by counsel to SERAP’s Deputy Director, Kolawole Ogundare, the court ordered that the case file be returned for reassignment.
Drama Over Applications to Join Appeal
An early drama unfolded when SERAP’s lead counsel, Tayo Oyetibo, SAN, informed the court that an application had been filed by certain individuals seeking to participate in the appeal as amici curiae, or friends of the court.
Following the court’s indication that it would hear the application, Professor Olarenwaju Fagbohun, SAN, the eighth Vice-Chancellor of the University of Lagos, rose to address the panel.
Fagbohun introduced himself as representing the University of Columbia through its Global Freedom of Expression Initiative, as well as United Nations Special Rapporteurs on the rights to freedom of assembly and association.
He further stated that he and other lawyers were acting in connection with the United Nations Special Rapporteurs on the promotion and protection of the right to freedom of opinion and expression.
According to him, an application dated October 12 had been filed, seeking the court’s permission for the lawyers to participate in the appeal as friends of the court.
“We’re seeking the leave of this honourable court to participate in this appeal and assist the court with independent submissions,” he told the panel.
However, the presiding judge, Justice Danlami Senchi, questioned the basis for the application, asking whether the court had invited the lawyers to participate.
“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? You’re supposed to be a guide to the junior lawyers in court,” the judge said.
He added that the panel had no intention of wasting time on lengthy arguments or unnecessary legal technicalities.
“I said earlier that we are not here to speak long grammar or waste the court’s time. We didn’t seek any assistance. We didn’t invite you,” Senchi declared.
In response, Fagbohun explained that the lawyers were not taking an adversarial position but merely seeking to assist the court.
“We are not adversarial. We’re actually trying to assist this court,” he said.
The judge, however, maintained that the matter should be determined on its merits, noting that the applicants were neither parties to the case at the lower court nor parties to the appeal.
He urged Fagbohun to withdraw the application to allow the proceedings to continue.
“There are certain things we’ll see and say, ‘come and help us’. Just withdraw your application so that we can make progress. I don’t think there’s any need for this,” the judge said.
Fagbohun subsequently withdrew the application and apologised to the court, prompting the judge to commend him.
“Your juniors here will be happy for that,” Senchi remarked.
Taking a similar step, Mojirayo Ogunlana, who represented the Southern African Litigation Centre, also withdrew her application seeking permission to participate in the appeal as amicus curiae.
Court Reserves Judgment in One Appeal
After the panel reserved judgment in the first appeal filed by the Incorporated Trustees of SERAP, it proceeded to consider a related appeal involving the organisation’s Deputy Director.
The latter appeal had been responsible for the previous Friday’s adjournment.
The panel expressed dissatisfaction with the presentation of the application by Ogundare, questioning the manner in which the reliefs sought had been framed.
According to the judge, the counsel ought to have consulted more experienced colleagues before presenting the application.
“Look at the way and manner you couched your prayers. We can’t grant this. You have to withdraw and refile it,” Senchi said.
The judge also criticised the counsel’s presentation, stressing that the proceedings were before a court of record and required a more careful approach.
“I think that Prof. Olarenwaju was praying for this appeal not to continue. You just like to talk. This is a court of record. You’re before the Court of Appeal,” he said.
The judge subsequently ordered that the case file be returned for reassignment, effectively bringing the proceedings in that appeal to a halt before the panel.
