Friday, December 9, 2016 8:53 pm
TheNEWS has once again been 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. 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 privilege 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.
The court concluded, therefore, by stating thus:
‘‘I do not entertain any doubt at all that the press has a duty to inform the citizenry on matters of public interest, once such is about the conduct of a public official, once such a report is factual and not undertaken devoid of any regard for truth, no liability will arise.’’ He relied on the authority of NNN – against Adebakun. Finally, he stated that he found “no evidence of malice in this report of the proceedings that took place before P.I. Engere Esq, Chief Magistrate as she then was. Consequently, I dismissed this suit.”
Dr B.A.N Nwakoby filed three grounds of appeal challenging the judgement. He alleged that absence of the appellant at the magistrate court meant that he was not charged. The story was, according to him, not accurate.
However, the court of Appeal agreed with the decision of the lower court presided over by C.C. Nweze that the report was done without malice. That Nwakoby was not able to show malice at the lower court and that malice, when proved, is the only ground that can destroy the defense of qualified privilege relied on by TheNEWS at the lower court.
The Court of Appeal therefore dismissed the appeal for lack of merit