In the High Court of the Federal Capital Territory in the Abuja Judicial Division Holden at Abuja Before His Lordship, Hon Justice Valentine B

IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA BEFORE HIS LORDSHIP, HON JUSTICE VALENTINE B. ASHI SUIT NO: FCT/HC/CV/1580/14

ON FRIDAY 7TH OF APRIL, 2017

With him: LEGAL ASSISTANT: IFEOMA E. EZE (Mrs) REGISTRAR: Balami E.P., ESQ CLERKS: YUSUF AUTA & AUGUSTINA CHIKA UCHE COURT NO: HIGH COURT NO. 29 APO

BETWEEN LT-GENERAL ONYEABO AZUBUIKE IHEJIRIKA ………PLAINTIFF AND 1. STEPHEN DAVIS 2. NDUKA OBAIGBENA ...... DEFENDANTS (Editior-in-Chief of Arise News) 3. LEADERS & COMPANY LTD

JUDGMENT This action was initially instituted [on 24/11/2014] by the Plaintiff against the 1 st Defendant only. 2 nd and 3 rd Defendants were subsequently added with leave of court granted on 11/03/2015. Consequently the writ of summons was amended to reflect the joinder and was re-filed on 17/04/2015. In both the Amended writ as well as the Amended statement of Claim, the Plaintiff claims against the defendant the recovery of: 1. The sum of N100 Billion as aggravated and general damages for defamation in a false and malicious publication and broadcast by the Defendants at Abuja, within jurisdiction through the medium of the Arise News and THISDAY newspapers of 28-08-2014 2. An order of perpetual injunction restraining the defendant from further publication of defamatory matter concerning the plaintiff

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3. An order for the defendants to publish a retraction on the front page of the Thisday newspaper Concisely, plaintiff’s case is that on 28/09/2014 1st Defendant, one Dr. Stephen Davis, an Australian national who claimed to be a Boko Haram “ negotiator”, granted a multimedia interview broadcast by Arise News Television network, an arm of the 3 rd Defendant company (Leaders & Company Ltd), which said interview was aired in Nigeria, including Abuja, by the 2 nd and 3 rd Defendants. At the interview, the Plaintiff further averred, the 1st Defendant was asked to name the sponsors of Boko Haram and in answer, 1 st Defendant uttered the following words:

“There is the former Chief of Army Staff, retired in January, or actually sacked by the President, he is another sponsor. I could give you the names if you like but I have no fear that these were very competent and it is in fact Boko Haram senior commanders who have been naming them.” He averred that the above words, which were false, malicious and defamatory referred to the Plaintiff and were so understood to refer to him, as he was the Chief of Army Staff who retired in January, 2014. Subsequently, 2 nd and 3 rd defendants proceeded to further publish the defamatory matter in an online platform www.thisdaylive.com as well as in the Thisday newspaper of 29/09/2014, under the caption:

“Australian negotiator names Ihejirika, Sheriff as sponsors of Boko Haram”

Plaintiff further averred that the above publications gave the impression, among others, that:

(i) That the plaintiff sponsors Boko Haram, a terrorist sect. to wage war and insurrection or insurgency against Nigeria (ii) That the plaintiff did not retire but was sacked by the President, (iii) That the plaintiff has committed treason,

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(iv) That the plaintiff has conducted himself in a manner tantamount to a breach of his oath of allegiance and of service as a soldier and senior officer in the Nigerian Army.

Finally, Plaintiff explained that being aggrieved he strove unsuccessfully through his solicitor to seek direct redress from the defendants, failing which he had to head for the courts.

The 2 nd and 3 rd Defendants were granted leave to defend the suit on 22/05/2016. In their joint statement of defence they tacitly admitted publishing the news item but denied its libelous imputation and instead raised the defences of absence of a cause of action against the 2nd and 3 rd Defendants as constituted and of qualified privilege. Plaintiff filed a Reply pleading and joined issues with the 2 nd and 3 rd defendants. Specifically, they averred that the defendants’ conduct was patently malicious and therefore fell outside the realm of privilege, especially as the 2 nd and 3 rd Defendants neglected to verify the veracity of the utterances made to them by the 1 st Defendant

It is pertinent to point out that hearing was initially concluded ex parte because the first defendant, despite having been served failed to attend court. But, as for the 2 nd and 3 rd Defendant, upon being served following the order of joinder they instructed learned counsel to defend its interest. Consequently Mr. Samuel Zibiri, SAN, initially filed a joint memorandum of appearance on 12/05/15, but shortly thereafter withdrew his appearance. Despite this development all the Defendants continued to be served with hearing notices while the case kept being adjourned in the hope that the defendants will live up to their bidding. It was when it became obvious that it might soon become unjust to continue to adjourn the case on account of the persistent absence of the defendants that on 03/05/2016, the court permitted the Plaintiff to lead oral evidence in support of his pleading. The plaintiff therefore opened and closed their case on the same day and indicated their willingness to send in a written address within 48 hours from thence and added that they were going to waive the right to oral summation.

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They urged me to treat the address, when received as having been adopted and proceed to deliver judgment.

Judgment in default of defence was ready for delivery on the 15/05/2016 when Franklin I Chude, Esq and 2 others with him came along and announced appearance for the 2 nd and 3 rd Defendants. He also sought for and was granted leave to move a motion for leave to defend the action. After taking arguments from both sides, this court on the 24/05/2016, in a considered ruling granted him leave to defend the action.

As stated earlier, Plaintiff had opened and closed his case, with the testimonies of the PW1 and PW2, respectively, before the 1 st and 2 nd Defendants were granted leave to defend. Three sets of documents were admitted through the 2 witnesses, namely, Exhibits A, B and C, respectively. Exhibit A is an LG/DVD player and Sonny DVD. Exhibit B is a CTC of extracts from pages of Thisday newspaper of Friday, August 29, 2014, Exhibit C is a solicitor’s letter of Professor Charles C. Ilegbune, OON, FNIAL, and SAN, addressed to the defendants and complaining about the libel. It is dated 22/09/2014. With the coming on board of the 2 nd and 3 rd Defendants as earlier explained, the 2 witnesses had to be recalled for cross-examination. Under cross-examination, the PW1 who is also the Plaintiff confirmed that he was the Chief of Army staff (CAS) who retired in January 2013. That his matters patterning to the discharge of his official duty were of public interest. That as CAS he considered Boko Haram an insurgent and terrorist organization. He had no relationship or any issues with them other than that he fought them through his commanders. He admitted reading Exhibit B, the copies of extracts from Thisday newspaper admitted in evidence. He confirmed that in the same narrative containing the publication against him there were also statements credited to him as if he made them. At first he admitted that he agreed with the views credited to him but later stated that he took exception to the views credited to him. But, above all, he denied ever granting any interview to newspaper. Going further, PW1 admitted that his name was not

Page | 4 mentioned in the audio tape, admitted as Exhibit A, but that his office as COAS was mentioned. And he was the only COAS who retired at the time mentioned in the taped interview.

PW2, is Major-General Ashimiyu Adebayo (rtd), who said he worked with the Plaintiff/PW1 in military service for over 30years, during which time he found him as a boss to be truthful and trustworthy. He said he read the two versions of the publication under review – that of Dr. Steven Davis at the Arise conversation and that credited to the Plaintiff in the Thisday publication. He said he had not known nor heard about Dr. Davis before then but stated that he believed that credited to the plaintiff i.e when he asserted that he was not a sponsor of Boko Haram.

2nd and 3 rd Defendants testified through DW1, who is a director with the 3rd Plaintiff Company. He admitted that the aim of the Defendants was to publish the interview they had with 1 st Defendant. That even though 1 st Defendant did not mention the plaintiff’s name in the original interview, they did in their reportage of the interview. He said the publication they made was inspired by a sense of constitutional duty. Specifically, that they felt a sense of privilege so to do.

Furthermore, under cross-examination, DW1 stated that they did investigate the claim of the 1 st defendant about the plaintiff but that the scope of investigation entailed merely calling on him to authenticate the veracity of the claim but that the plaintiff did not deny the 1 st defendant’s claim. He expressly asserted that “in other words, he did not admit and he did not deny it”. But that on their part the Defendants did not conclude their investigation.

At the close of oral examination, learned counsel exchanged written addresses, which were subsequently adopted in open court. Defendants first filed his address and the Plaintiff responded with theirs while the Plaintiff filed a Reply on points of law. The Defendants who first filed their written address raised 5 issues for determination as follows

Page | 5 a. Whether the writ of summons is competent in view of the failure of the plaintiff to comply with the provisions of section 98 of the Sheriffs and Civil process Act b. Whether the 2 nd Defendant was properly joined in the suit c. Whether Exhibit A tendered by the PW1 was not wrongly admitted by reason of non-compliance with the provision of Section 84 of the Evidences Act d. Whether the 2 nd and 3 rd Defendants have made out the defence of qualified privilege e. Whether, in view of pleadings and evidence led the plaintiff is entitled to the reliefs claimed

On his part the Plaintiff raised a single issue for determination, which is, whether the plaintiff has established a claim for damages against the defendants, based on the tort of libel.

I have paid productive attention to a study and understanding of the respective submissions of learned counsel and I wish to quickly state at once that the five issues formulated by the Defendants as re-stated above are hereby adopted as the issues for determination in this case, for the following three reasons: First, the issues cover all points of fact and the law bearing on same, as far as practicable, in specific regard to this case; Second, the Plaintiff has impliedly adopted all of the five issues by making specific responses to each of them and I am bound to take those responses into account; Thirdly, the single issue formulated by the Plaintiff is sufficiently reflective of the Defendant’s 5 th issue. As such it can be subsumed and consolidated into one, under the same appellation as the Defendants’ issue number 5. Having said this I will now proceed at once to consider each of the 5 issues on their merit.

On ISSUE NO. 1 , Learned Counsel to the 2 nd and 3 rd Defendant has submitted that the Plaintiff ought to have obtained leave to issue a concurrent writ, for service within and outside the jurisdiction of this Honourable court, but that he did not, instead he was minded

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to issue the general writ. In his view, this is inadequate as it violates Section 98 of the Sheriffs and Civil Process Act. I do agree with learned senior counsel for the plaintiff in his submission when he stated in his written address that, in the first place, this issue like the second issue as discussed below, ought to be a threshold issue that should have been dealt with before any further step was taken by the 2 nd and 3 rd Defendant, perhaps after leave to defend was obtained, regard being had to the provision of Order 2 Rule 2 (b) of the Rules of court. However, owing to the element of jurisdiction embedded in the larger issue; and keeping in mind that in these matters it is better to adhere to the notion that postulates the surplusage of acts or conduct, expressed in the Latin phrase, ex ubundanti cautella i.e, “out of the abundance of caution”, I am minded to countenance this issue and set it down here for specific treatment. That said and going further, I should say that I can understand why learned counsel to the Defendants is worried about the procedure adopted by the Plaintiff in this regard. It is perhaps because the 1 st Defendant was served in the UK, a place that is clearly outside the Jurisdiction of this court. The 2 nd and 3 rd Defendants were served at Jabi District, Abuja within jurisdiction. Section 98 of the Sheriffs and Civil Process Act to which Defendants’ counsel refers provides:

“A writ of summons for service out of the State or the Capital Territory in which it was issued may be issued as a concurrent writ with one for service within such State or the Capital Territory and shall in that case be marked as concurrent.”

In Paragraphs 3.2 and 3.3. of the written submission, learned counsel to the Defendant submitted that because the 1 st Defendant is described as living in Perth, Western Australia, while the 2 nd and 3 rd Defendants are said to be living in Jabi District, Abuja, the Plaintiffs ought to have issued a concurrent writ within the purview of Section 98 of the Act as reproduced above. The above provision, in my view is clear and unambiguous and does not call for any of the technical rules

Page | 7 of construction that are applied to resolve and determine “intent” as embedded in complex writing. The literal and plain language rule will be sufficient here. In my humble view, what this provision portents is that where two persons or the same person has addresses for service within and outside the jurisdiction of the forum court, the person who takes out the writ MAY wish to issue a concurrent writ, instead of two separate writs, merely because they are to be served at two destinations. Once resort to a concurrent writ is contemplated, then the person applying for it to issue SHALL obtain the leave of court so to do. I think this much is an idea already shared by learned senior counsel in his written brief, at pages 6 – 7, respectively.

The question then is whether a plaintiff is under obligation to obtain or issue a concurrent writ at any time. I am unable to endorse a proposition that suggests that a concurrent writ is a sine qua non at any rate. The rules of court do not make such prescription and to the best of my knowledge, there is no case law to support the view. Indeed, learned counsel to the 2 nd and 3 rd Defendant has not cited any. All the cases cited by him only underscore the need to seek leave where resort is made to a concurrent writ. None of the cases prescribe that such a writ must be resorted to in so and so a situation. Thus, as submitted by learned senior counsel to the Plaintiff, they never applied for a concurrent writ, as such they cannot be obligated to obtain leave to issue what they never applied for.

By the way, under the Common law of England, a writ of summons is a method of initiating civil litigation and compelling a defendant to submit to the jurisdiction of a common law court, such as the FCT High Court. It is usually resorted to where the matters in dispute are enveloped in contentious and disputable points of facts to be tried in oral evidence at plenary. Where a writ is to be served out of jurisdiction, most Rules of court require that leave of the forum court be obtained before it can be validly issued. 1 However, except in a few other severely exceptional circumstances, a writ for service within

1 Order 4 Rule 11 (2) and Rule 1 4, FCT HIGH COURT (CIVIL PROCEDURE) RULES, 2004

Page | 8 jurisdiction does not require the leave of any court in order for it to be valid. 2 Where two different defendants are to be sued in the same action, with one residing within and the other residing outside the jurisdiction of the forum court, for example, two different writs are required to be issued. The one for service on the party resident abroad will be slightly different from the one for service on the party resident within jurisdiction; if not for nothing else, at least, the addresses and the endorsements for service ought to be different. In my view, it is perhaps for economic reason and to minimize time that the legislature may have permitted litigants to approach the courts in such circumstances, to obtain leave to issue composite writs called “concurrent writs” for service within and outside the jurisdiction of the forum court.

To my mind, there is nothing magical, metaphysical or voodoostic about a concurrent writ as learned counsel to the 2nd and 3 rd defendants has made it to appear. In view of all I have said so far, I hereby answer the question comprised in the first issue in the affirmative by holding that the writ of summons issued in this action was competent and validly issued.

On ISSUE NO. 2, which is whether the 2nd Defendant was properly joined in the suit. On this issue, the 2 nd and 3 rd Defendant seems to be saying that Mr. Nduka Obaigbena, the 2 nd Defendant, who is described in Paragraph 3 of the statement of claim as “Editor-in-Chief and Chairman of the Board “ Arise News” as well as Chairman of the Board of the 3 rd Defendant was wrongly sued as he did no personal wrong to the Plaintiff to warrant the action against him. I have scrutinized the statement of claim and I cannot find where the Plaintiff has averred to facts that point to any personal or official wrong done by Mr. Nduka Obaigbena against the plaintiff. In pages 10-12 of his written address learned senior counsel for the plaintiff, relying on several case law, has urged the court to think that by not traversing the plaintiff’s averment in Paragraphs 3, 8 and 9 of the statement of claim, the defendant

2 Under Order 21, for instance, a writ on the Undefended List requires leave of court to issue

Page | 9 should not only be taken as having admitted the facts as averred therein but also the implication of those facts as constituting liability.

I have perused those paragraphs and as stated, however, with due respect, I cannot find where 2 nd defendant has been charged with liability on account of any role he personally or officially played in the events that gave rise to the cause of action as claimed by the plaintiff, to the end that it may justifiably be concluded that his non-travers of the facts as averred amounts to an admission of liability. Indeed, quite rightly, in my view, as submitted by learned counsel to the 2 nd and 3 rd Defendants, given the positions he is said to be occupying in both Arise News and Thisday newpaper, he is at best an agent of a disclosed principal, the latter being vicariously liable for whatever action, if any he may have taken or omitted to take that resulted in the law suit. The law is that an agent acting on behalf of a disclosed and known principal, as in the instant case, is not liable for his acts as an agent. Only the principal should be liable. Speaking in specific terms, the Chairman of the Board of the 3 rd Defendant, which is described as a limited liability Company, even if he is a director of that company is only an agent of the company. See , Iwuchukwu vs. Nwizu (1994) 7 NWLR (Pt.357) 379, SC. Also, Yesufu vs. Kupper International N.V. (1996) 5 NWLR (Pt.446) 17 @ 28. In our case in hand the 2 nd Defendant’s principal, the 3 rd defendant is the person vicariously liable for his acts and omission. For, as explained in Blacks’ Law Dictionary, (8 th edition), the agent normally binds not himself but his principal in the discharge of the functions of his office. Nevertheless, an agent of a disclosed principal can only be sued if it can be shown that in discharging the functions of his offence, he went off-tangent and outside the scope of his employment. See, Carlen (Nig) Ltd v University of Jos (1.994) 1 NWLR (PART 323) 631. Nothing has been placed before me to indicate that 2 nd defendant partook in the acts complained of, let alone being engaged in the activities that might be considered as having exceeded his brief as discussed.

For all the forgoing reason, I am of the view, with due respect that the 2nd Defendant was wrongly joined as a party in this proceeding. In

Page | 10 consequence the 2 nd issue is resolved in favour of the2nd defendant. Pursuant to power conferred on this court in that behalf in order 10 Rule (5) and Order 46 Rule 1 of the Rules of Court, the name of the 2 nd defendant hereof is hereby struck out as a party to this proceeding.

ISSUE NO. 3 , is whether Exhibit ‘A’ tendered by the PW1 was not wrongly admitted by reason of non-compliance with the provision of Section 84 of the Evidence Act. Exhibit ‘A’ is a LG/CD player together with a Sonny/DVD. I agree with learned senior counsel that the exhibit is more associated with the liability of the 1st Defendant than of the 2 nd and 3 rd Defendants. But, with due respect, I do not agree that raising it for consideration by the court is diversionary, as shall be seen in due course. Let us even examine the content of Exhibit ‘A’. I have examined them and they contain the transcripts of utterances by the 1 st Defendant when he was interviewed on Arise News television. The devices used and the transcripts made were admitted in evidence as Exhibit ‘A’ on 03/05/2016 at a time that the 2 nd and 3 rd Defendant did not participate in the proceedings, as such they were not available to challenge its admissibility, if they so desired. The devices are of the type that are deployed to electronically process, store and retrieve data or information. The question really is whether the exhibits were admitted in evidence in compliance with the law. In other words, whether they could be conceived “a document produced by a computer” within the purview of Section 84 of the Act

At page 15-16 of his written address, learned senior counsel submitted that: “…Exhibit A is a transcript of the Television interview granted by the 1st defendant and republished by the 2nd and 3rd defendants. It is not an e-mail or internet computer generated evidence. PW2 gave evidence that he watched the interview. Exhibit A is admissible secondary evidence of the interview under Section 87(b), (c) &(e) of the Evidence Act 2011, being copy made from the original broadcast and copy compared with the original by Pw2, the witness himself who saw and watched the interview. Under Section

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89)d), of the Evidence Act 2011, such secondary evidence is admissible when the original is of such a nature as not to be easily moveable, and under Section 90(1) (a), any Secondary evidence of the interview is admissible including oral evidence under Section 87(e). Documents. Under Section 258(1) of the Evidence Act, includes a disc. And copy of a document includes a transcript. Section 84 of the Evidence Act is not relevant in this case. Vide Section 84(5) (c), there is no evidence that Exhibit A was a document produced by a computer.”

Going by the above-quoted passage, it seems to me that learned senior counsel is of the view that a computer generated document contemplated under Section 84 ought to be something downloaded from or uploaded to the internet or something otherwise transmitted through the internet, such as the e-mail (shorthand for “electronic mail”). However, the state of case law is at variance with this respectable position. In Omisore & Anor v Aregbesola & anor (supra) C. C. Nweze, JSC, in a supporting judgment stated that:

‘’… the main plank of the argument of the first and second cross-respondents, with regard to the second issue above, was that only internet-generated documents are caught by the admissibility requirements of Section 84… With profound respect, this argument is untenable…R. Shepherd (1993) 1 All ER 225, Kubor v Dickson (2013) 4 NWLR [Pt. 1345] 534 … Even the very chapeau or opening statement in Section 84(1), the Act contradicts this submission…’’

Indeed, a close look at Section 258 of the Evidence Act –the definition section – which the Learned Justice relied on seems to equally suggest that Section 84 has a wider ramification, as the language used by the legislature in describing a computer a fatiori computer generated document therein is wider. Under the section 258

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"Computer" means any device for storing and processing information, and any reference to information being derived from other information is a reference to its being derived from it by calculation, comparison or any other process”

And a transcript of the sounds or other data embodied in a CD/DVD, such as is presented in Exhibit ‘A’, is defined in Section 258 as constituting “copies” of such computer documents. Let me quickly add that the original would be the device holding the soundtrack from which the transcript was obtained. The next question is what is meant by “any device” that could qualify as “a computer” in this context? In my view, the answer is found in the definition of “document” under the same Section 258. “Document” is therein defined to include

“(a) ………………………………………………………………….. (b)any disc, tape, sound track or other device in which sounds or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced from it, (c) any film, negative, tape or other device in which one or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced from it; and (d) any device by means of which information is recorded, stored or retrievable including computer output ”

Taking into account the dictum of Nweze, JSC and the foregoing quoted provisions of the Act, read together integratively, I am of the view that the LG/DVD player as well as the Sonny/CD containing the transcripts, which is to be played over the DVD player, both of which constitute Exhibit ‘A’ hereof are computer devices and computer generated documents that are governable by Section 84 of the Act. Specifically, the DVD player is a type of “any device by means of which information is recorded, stored or retrievable, including computer output ” as in sub-section (1) (d) of Section 258, while the transcripts are “copies” made from the original information broadcast therefrom.

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This is what Wikipadia the on-line dictionary says about DVD as a modern means of data storage and retrieval. In my view, it is sufficiently illuminating for our purpose here: “DVD (an abbreviation of "digital versatile disc" or "digital video disc") is a digital optical disc storage format invented and developed by Philips, Sony, Toshiba, and Panasonic in 1995. The medium can store any kind of digital data and is widely used for software and other computer files as well as video programs watched using DVD players. DVDs offer higher storage capacity than compact discs while having the same dimensions. Although a DVD is only a means of storage, the content is no less a computer document. There is considerable judicial support, both in Nigeria and overseas, for the proposition that transcripts of broadcasts over the radio and television, specifically, constitute a part of “computer or electronic records” within the purview of Section 84 of the Act. Our Evidence Act 2011, especially the provisions of Sections 51 and 84 take a cue from the UK Criminal Evidence Act, 1965. In R v Blackburn (2005) 2 Cr App R 280 (CA) and R v Wade (1993) 1 Dec (CA) cited in Stephen Mason’s “ELECTRONIC EVIDENCE” 3 rd ed para 10.67 , the English Court of Appeal, treated transcripts and print-outs from data stored electronically as computer generated evidence. Also under Section 65B of the Amended India Evidence Act, which is in pari materia with our Section 84, print-outs from electronic transcripts were treated as computer generated documents, which must be subjected to the fulfillment of pre-conditions for admissibility similar to our Section 84 (2) and (4). See, State v Mohammad Afzal (2003) 107 DLT 385 (Delhi). See also M. Kumarasamy v Karthikeyan, AIR 2008, Shymala Rajini v Tamizhanathan 2008 AIHC 593 (Madras). 3

Back home, in Rotimi Akeredelu v Abdulrahman Mimiko (2013) LPELR, the Court of Appeal treated the output of a DVD player as the product of a computer, within the meaning of Section 84 of the Act. See also

3 For fuller discussion, see, Sarka’s Law of Evidence (India) 17th Ed, Vol. 1, LexisNexis Butterworths, Wadwa (India). Read also Stephen Mason’s Electronic Evidence , LexisNexis, 3rd Edition (India Reprint).

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Omisore v Aregbesola (2015) 15 NWLR (Pt. 1482) 205. In view of the foregoing, I hold the view that Exhibit “A” before me is a piece of computer generated evidence, which ought to undergo the integrity test in Section 84(2) or (4), as the case may be. In Kubor v Dickson (2013) 4 NWLR (P. 1345) 534, the Supreme Court emphasized that it was obligatory for a party who desires to tender a document, such as Exhibit “A” hereof that falls within the purview of Section 84 of the Act to comply with the provisions of the Section. See also Seriake Dickson v. Timiprieye Sylva & Ors SC.518/2016, per C. C. Nweze, JSC.

At the risk of sounding repetitive, but for the avoidance of doubt it need be stressed that under Section 258 of the Evidence Act the devices of the type constituted by Exhibit A as well as the output qualify as computer devices and computer documents. For instance, the transcripts of a televised interview being relied upon here are “copies” of information stored in a computer device. They are not ordinary documents such as the types of note books, which visitors to any hotel or public or civic office signs in or signs out on check out of the property. They are not the same as cash invoices issued by a merchant or dealer on building materials at Dei-Dei Int’l building materials market. They are very much different from the waybill issued to a person who sends a parcel from Abuja to Calabar via UPS courier service. They are not the same but very much different from motor vehicle papers issued by the VIO Office; neither are they the same as a student’s text book, class note book or workbook for take-home assignments, nay the terminal examination report cards. They are not the same as the cash receipt of payment of rent issued by landlords. Above all they are not the same as a copy of a newspaper bought from a vendor along the street. I could go on and on, but of fundamental importance is the fact that the contents of all these other types of documents, the list of which is in exhaustive are provable in the conventional way, such as the method prescribed in Section 86, 87, 88, 89, 90 and 91of the Evidence Act, 2011. Where the document is shown to be a computer generated document of which, as already determined, Exhibit “A” before us belongs, the provisions of Section 84 of the Act are immediately called in aid.

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Section 84 of the Act is an innovation introduced to accommodate new phenomena of largely paperless recording of which CD/DVD feature prominently. These should be distinguished from the traditional paper-based records. Unless the courts are prepared to see them as something different from the conventional paper, we may never be able to accommodate this new phenomena. Indeed, we would have failed in our duty to uphold the intention of the legislature. For clarity, I will reproduce the section 84 in extenso :

“84 (1) In any proceedings, a statement contained in a document produced by a computer shall be admissible as evidence of any fact stated in it of which direct oral evidence would be admissible, if it is shown that the conditions in subsection (2) of this section are satisfied in relation to the statement and the computer in question. (2) The conditions referred to in subsection (1) of this section are – (a) that the document containing the statement was produced by the computer during a period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period, whether for profit or not, by anybody, whether corporate or not, or by any individual;

(b) that over that period there was regularly supplied to the computer in the ordinary course of those activities information of the kind contained in the statement or of the kind from which the information so contained is derived;

(c) that throughout the material part of that period the computer was operating properly or, if not, that in any respect in which it was not operating properly or was out of operation during that part of that period was not such as to

Page | 16 affect the production of the document or the accuracy of its contents; and (d) that the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of those activities. (3) Where over a period, the function of storing or processing information for the purposes of any activities regularly carried on over that period, as mentioned in subsection (2) (a) of this section was regularly performed by computers, whether - (a) by a combination of computers operating over that period; or (b) by different computers operating in succession over that period; or (c) by different combinations of computers operating in succession over that period; or (d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.

(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate (a) identifying the document containing the statement and describing the manner in which it was produced; or (b) giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer; or (c) dealing with any of the matters to which the conditions mentioned in subsection (2) above relate,and purporting to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the

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management of the relevant activities, as the case may be, shall be evidence of the matter stated in the certificate, and for the purpose of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it. (5) For the purposes of this section – (a) information shall be taken to be supplied to a computer if it is supplied to it in any appropriate form and whether it is supplied directly or (with or without human intervention) by means of any appropriate equipment; (b) where, in the course of activities carried on by any individual or body, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities; (c) a document shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.

As stated earlier, in Kubor v Dickson (supa), Omisore Ors v Aregbesola anor (supra), the supreme court held that compliance with the pre- conditions set out in S.84 is mandatory for admissibility of computer generated evidence. I always like to describe the pre-conditions as integrity test. In my view, it entails the two alternative approaches to oral testimony on the point at issue. First and indeed the general one is the [physical] fulfilment of the integrity test in Section 84(2). That is when someone such as the owner or user of a device has to attend court and personally testify as to the type and condition of the device when the information that is being offered in court was processed. The second approach is where, under Section 84 (4) someone, not necessarily the owner, operator or user of the device comes to court to adduce evidence by tendering information processed on the device. Under this second or alternative option he must support his testimony

Page | 18 with a certificate issued to him by someone occupying a responsible position in the organization, verifying that the pre-conditions prescribed in Section 84(2) have been complied with. I suspect that the second option was created to take care of entities such as organizations, which use office machines. See, the Indian Supreme Court case of Anver v Basheer & Ors, (2014) 10 SCC 473.

It is a widely held notion in both judicial and academic circles that the tests stipulated as pre-conditions for admissibility under Section 84 are to ensure authenticity, reliability and accuracy of the contents of the digital document. The modern computer is susceptible to easy manipulation and computer machines and devices can malfunction, thereby producing information or data that is distorted, hence inaccurate and unreliable. Integrity tests such as those embedded in Section 84 are intended to minimize the chances that will be open to any person to manipulate digital or electronic documents that the court may need to rely on in dispensing justice. If the legislature had intended [judicial] discretionary subscription and not obligatory adherence to those tests it certainly would have expressly provided an opportunity for that. It is for this reason that, with due respect to learned senior counsel to the Plaintiff, I am unable to endorse the proposition that in the circumstance, it suffices to tender the transcripts comprised in Exhibit “A” under Section 87(b), (c) &(e), 89 (d), and 90(1) as he has submitted in his written address.

It is obvious that the Plaintiff having failed to satisfy the conditions prescribed in Section 84 of the Act has predisposed Exhibit “A’ to a striking out order. See, Kubor v Dickson (supra). Premised on the forging considerations I hereby strike out Exhibit ‘A’ and answer the 3rd question in the affirmative. In other words, Exhibit “A” was wrongly admitted. The wider implication of this is that the plaintiff has failed to establish a prima facie case against the 1 st defendant. That being the case, ordinarily his claim against him ought to be dismissed, notwithstanding that he is absent; has filed no response and is deemed to have admitted all the averments as contained in the statement of claim. Nevertheless, even where a defendant failed to

Page | 19 attend court and defend an action, the trial court can only enter judgment for the plaintiff for so much as the latter has been able to prove by evidence. See, Order 13 Rule 5 of the Rules of court. I do recognize that there is no express provision in the Rules of court for an order of non-suit, but having regard to the provisions of Order 46 Rule 1 and given that no particular rule precludes me from making the order, I hold that instead of an order of dismissal, I hereby non- suit the plaintiff as regard his claim against the 1 st Defendant

I will now finally take on issue numbers 4 and 5 and treat them together, for convenience only. The two issues are, whether the 2nd and 3rd Defendants have made out the defence of qualified privilege and whether, in view of pleadings and evidence led the plaintiff is entitled to the reliefs claimed. It is important to keep in mind that parties are bound by their pleadings. In civil proceedings tried in plenary and founded on pleadings, the court’s decision must be justified by both the facts pleaded as evidence on facts not pleaded go to no issue and must be discountenanced. See, Nwafor Orizu v Anyaegbunam (1978) 5 SC 21, Skye Bank PIc v. Akinpelu (2010) 9 NWLR (Pt. 1198) 179 In this proceeding, it is common ground that Defendants published some materials about and concerning the Plaintiff. That being the case, we will here dispense with the need to get involved in definitions and the dialectics of defamation. Instead, we should look at the pleadings of the plaintiff who has the burden of proof and the evidence led in support. If the evidence is in line with the pleaded facts, the Plaintiff will succeed. However, if the evidence is at variance with the pleadings, the consequence is obvious. In Paragraphs 13 and 14 of the Statement of claim, the Plaintiff pled against all the Defendants as follows:

“13 . The said words were maliciously spoken and published of the Plaintiff by the Defe4ndants and are false and baseless and calculated to mislead the generality of the world thereby brining the Plaintiff into scandal, odium, obloquy, ridicule in the Plaintiff’s standing, character,

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reputation and profession as a soldier, a gentleman, a statesman, a senior Army Officer, a world figure, and a highly decorated Nigerian Citizen. 14. Given the public stature of the plaintiff, various Newspapers in Nigeria as well as internet outlets picked up this primary defamatory publication by the defendants and gave it virile dissemination all over the world.” Meanwhile, the 2 nd and 3 rd defendants in their Joint Statement of Defence, while not seriously denying the fact of publication, nevertheless denied that the publication was defamatory of the plaintiff in the manner claimed by him in his statement of Claim as reproduced above, which claim the plaintiff was also challenged to strict proof. As part of their defence, the 2nd and 3 rd defendants pled qualified privilege upon the following particulars: “In the alternative the 2nd and 3rd defendants hereby pleads that the said publication was made on an occasion of qualified privilege and made without any malice to the plaintiff. PARTICULARS OF QUALIFIED PRIVILEGE a. The 2nd & 3rd defendants published the story under a sense of duty and without malice towards the plaintiff. b. The 2nd & 3rd defendants herein have a duty to the public to disseminate information of public interest. c. There is prevalence of insecurity in Nigeria and same is in the front burner of national interest. d. The 2nd & 3rd defendants published the said story in the reasonable and necessary protection of the public and its role as a watchdogs in the conduct of public affairs. e. The publication has nothing to do with plaintiff, and or his character. But, in Paragraph 2(i) of his Reply pleading, the Plaintiff further averred that “the offending publication…is false and malicious, yet the

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2nd and 3 rd Defendants re-published …without verifying same or finding out from the plaintiff his own version of the story and also publishing it, which they did not do.” Now, keeping in mind that because the Plaintiff, by law bears the burden of proof of the allegation of defamation, in that he it is who would fail if no evidence at all were called by either party at the end of trial, we need to ask the question, what is the potency of the evidence led by the plaintiff in support of his claim? Plaintiff testified as PW1 and tendered Exhibits A, B and C. He called one other person as a witness – Maj-Gen Ashimiyu Adebayo (rtd), who testified as PW2 but tendered no document. I have scrutinized the evidence of both witnesses. I can see that the contents of the Witness Statement on Oath of the PW1 is in pari materia with the statement of claim. But I say that in my view, it is his ipsi dixit of how the Defendant’s utterances in electronic and print media was perceived by him (Plaintiff) as libelous and might have brought down his personality and esteem in the eyes of right-thinking members of society. Exhibit A is the CD/DVD player as well as the transcript of the alleged defamatory material in transcript form, stored in a disc to be played on the machine. Exhibit B is a CTC of Thisday newspaper publication of the alleged defamatory matter. Exhibit C is a copy of a solicitor’s letter to the defendants calling their attention to the alleged defamation and requesting for redress. Being the only witness called by the Plaintiff, I strongly suspect that pw2 was called to testify as representing a cross- section of those to whom the publication was made and, therefore, a person before whom the plaintiff’s character and esteem was brought to low ebb. In paragraphs 7, 8 and 9 of his Witness Statement on Oath, front-loaded along with the Amended Statement of Claim, filed on the 17 th of April, 2015, PW2 stated that: “7. That when I listened to what Stephen Davis said on the 28 th of August, 2014, I had no doubt that Stephen Davis was referring to the Plaintiff. The Plaintiff was the only army officer who had retired as Chief of Army Staff in Nigeria Army as at 28 th of August, 2014”

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8. “…what Stephen Davis said stunned me because it amounted to a damaging thing to say about a person of the Plaintiff’s standing…” 9. “…after hearing what Stephen Davis said concerning the Plaintiff, I became worried and disturbed because what Stephen Davis said was awfully defamatory publication to make about a person of Plaintiff’s standing and achievements. I really feel outraged by what he said

At the close of his evidence –in – chief, the following cross-examination dialogue ensued between I. F. Chude, Esq of learned counsel to the 2 nd and 3 rd Defendants and the PW2 PW2 (Reminded of his oath.) Chude: Your name again? Pw2:- My names are Major. General Ashimiyu Adebayo (rtd). Chude: - Do you still stand by your Witness Statement on Oath? Pw2:- Yes. Chude : - How long did you work with plaintiff? Pw2:- For well over 30 years. Chude: - Did you find him to be a truthful and trustworthy fellow? Pw2 :- Yes. Chude: - You read about the story about Ihejirika that is what made you to come to this Court? Pw2:- Yes. Chude : - Before then did you ever know the 1st defendant-Stephen Davis? Pw2:- No.

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Chude: - In the story you read, you read Ihejirikas part of the story as well, correct? Pw2:- Yes. Chude : - He denied sponsoring Boko Haram? Pw2 :- Yes. Chude : - Between the two versions, which of them do you believe? Pw2 :- Of course I believe that of the plaintiff, Lt. Gen. Ihejirika, Chude : - That is all for this witness. Re-examination: Udechukwu , SAN: - Nil and that is our case. When one places the testimonies of PW2, as contained in paragraphs 7, 8 and 9 of his written statement on oath, as reproduced above, side by side with his responses to cross-examination questions, also as restated above, it will be noticed that in paragraphs 7 and 8 of the Witness Statement on oath, PW2 claimed that after reading the defamatory story concerning the plaintiff, he was bemused and petrified by such utterances and he perceived the words as published to be “awfully defamatory, taking into account the huge societal standing and stature of the plaintiff.” But, as we have also noticed, under cross-examination, he contradicted himself when he stated that he did not believe the supposedly defamatory version of Dr. Stephen Davis, but rather believed that of the plaintiff who denied sponsoring Boko Haram. How could PW2 do this? It is not open to him to be heard to speak in rather contradictory terms in this way. He said he was outraged and petrified after reading the publication credited to Dr. Stephen Davis. In another breath he turned volte face and said he read the two versions of the same story but did not believe that his boss was a sponsor of Boko Haram. So, what made outraged? Was it because he believed that the Defendants lied against his boss or was it because he thought that his boss could have been culpable? He must

Page | 24 choose one. He failed to choose. It is too late in the day to do anything about it. The law does not permit this court to pick and choose for him either. The law enjoins me to reject his testimony in the circumstance as unreliable and I so hold. On this ground alone the claim ought to be dismissed because the implication is that the wide claims about how the plaintiff’s personality and character has been ridiculed, lowered in esteem, brought into public opprobrium, scandal, odium, obloquy, ridicule, reputation and profession as a soldier, a gentleman, a statesman, a senior Army Officer, a world figure, and a highly decorated Nigerian Citizen, has completely crumbled in one fell swoop. Why, because the PW1 to whom the words were published did not believe the story by means of which the words were conveyed to his ears. As stated earlier, even at this stage, I would be right to dismiss this claim as lacking in merit. However, lest I be accused of having failed to consider a vital defence raised by the defendants, I am minded to set down and treat the defence of qualified privilege as raised by the 2 nd and 3 rd defendants in their joint statement of defence. The plea of qualified privilege as well as particulars of the claim have already been reproduced. The defence of qualified privilege avails a defendant when he can show that devoid of malice aforethought he published the information complained about in the line of duty he owes the public so to do. The court of Appeal emphasized this in Joe Agi v. FCMB (2013) LPELR-20708(CA). Much earlier, in the case of Obasuyi v. Ezeighu (1991) 13 NWLR (PT. 181) 585, the Court, per Salami J.C.A (as he then was) held as follows:- "…qualified privilege is an occasion where the maker of a publication has an interest or duty whether legal, social or moral to make it to a person who has a corresponding interest or duty to receive it. The existence of such an interest or duty destroys the inference of malice which the law makes and allows for the occasion to be privileged except there is evidence of actual or express malice."

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In Akomolafe v. Guardian Press Ltd. [2004] 1 NWLR (Pt.853)1, Pius Olayiwola Aderemi, JCA, relying on the dictum of Lord Atkinson in Adam v. Ward (1917) AC 309 at 334 further explained that: "By the defence of qualified privilege, a defendant is saying no more than that even though the publication complained of by the plaintiff may be defamatory of him however, since it was published to the generality of the public who, the law recognizes as having a corresponding interest to receive it from the defendant that has a standing duty to publish it on account of public policy; such a defendant cannot incur any legal liability so long as the publication has not been actuated by malice…. When a defence of this nature is put up, it practically means that public convenience or interest must be preferred to private convenience or interest in the dissemination of information which is of paramount interest and benefit to the public, but the dissemination must be without malice." (Pp. 17-18, paras. G-F)

His Lordship had in an earlier decision pointed out that this defence is readily available to media houses and the only thing that can destroy it is to show that there was malice and not merely that the story was not true. Thus, in Gomez v. The Punch (1999) 5 NWLR, pg. 303, His Lordship stated: “As observed above, the defence put up by the defendants/respondent is qualified privilege. By this defence, the defendants/respondents are saying no more than that even though the article in Exhibit P1 might be defamatory of the plaintiff or it might even be untrue or false, however, since it was published to the generality of the people who, of course, the law recognizes as persons who have a correspondent interest to receive the publication from the first defendant (the Punch) that itself has the duty to publish it on the ground of public policy, it (first defendant) cannot incur any legal liability if the publication

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is not actuated by malice. It is the defence usually put up by media houses, which themselves are not only the mouthpiece of the public but their informants. So when the statement for article published is made honestly and without any indirect or improper motive a newspaper can legitimately take a cover under the defence of qualified privilege and consequently it is immune from liability” As re-stated earlier the defendant pled that the publication was made in the public interest, in a polity with a heightened insecurity situation, actuated by the ravaging and dreaded Boko Haram outlaws. Being a media organization and keeping in mind the exhortation of Lord Atkinson of the British House of Lords, as admirably restated by Aderemi, JCA, I am of the view that the defendant did not need to do more than what he pled as particulars of qualified privilege. Once this was accomplished the law of evidence requires that the Plaintiff plead and prove malice. Nothing has been put forward, both in the pleadings and in oral or documentary evidence to indicate to this court an element of malice. Instead, the Plaintiff appears to be steeped in the erroneous belief that because, the story as re-published was not true the defence of qualified privilege did not avail the defendant. But, as we have shown truth is not the centripetal force of qualified privilege, rather, what brings that defence into orbit is duty and absence of malice.

Under cross-examination, the PW1 testified that he never granted an interview to the Thisday newspaper . This testimony supports averments in his Reply pleading to the same extent. However, PW2 admitted in cross-examination that he read two versions of the same story – one by the 1st Defendant and the other by the Plaintiff in the same Thisday and he said he believed that of the plaintiff. On his part the DW1 under cross-examination admitted that they did not interview the plaintiff as such but that they investigated the veracity of the story all the same. That they did that by contacting the plaintiff to get his views and comments. The fact that there was no formal interview, notwithstanding, it is sufficient that the plaintiff was given

Page | 27 an opportunity to state his own side of the story, which his witness, PW2 also admitted he read and in respect of which he himself as PW1 under cross-examination initially said he did not disagree with, only to double speak a moment later by saying he objected to it. By and large, what is important is that he did have an opportunity to say something; whether what Thisday later imputed to him was agreeable or disagreeable to him, in my view, is of no moment any longer. The said comments are as contained in Exhibit B, the CTC of Thisday newpaper tendered by the plaintiff. The relevant portion in page 6 of Exhibit ‘B’ reads: “But in reaction to Davis’ allegation, sheriff said they were baseless. In a text message he sent to Arise TV, he stated; this is absolutely not true. I have absolutely nothing to do with them. Book Haram existed before I became a governor and they killed my family members, and kidnapped my brothers. This is not true.” “Ihejirika, on the other hand, told THISDAY that the allegation was diversionary, warning that its timing might be a prelude to an attack or an incident that the authorities and securities should pre-empt”. “This is meant to divert the attention of anyone - the nation, Federal Government and the international community – who is serious about stopping Boko Haram. If Boko Haram told Davis I am their sponsor, is it not hard to believe?” “Anyway, the only reason they can say so is because they suffered the most casualties when I was in charge. They know who gave them the most trouble; that is why they resorted to telling lies to divert attention. “Remember that when we stepped up our counter-terrorism campaign and they recorded several deaths, they changed tactics to make it appear like the military was involved in human right abuses, which America and others fell for.”

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“This is diversionary. Why should this come up at this time? Some diversionary issues come up as a prelude to either an attack or an incident that the authorities and security agencies should look out for before it happens. There is history of this as a tactic, so they should watch out: be warned.” All the foregoing facts, including the quoted passage, in my view go to show that there was absence of malice in the mind of the 3 rd defendant when he re-published the story in Thisday. Rather, there are sufficient indices that point towards a motive to honestly present to the public two sides of the same coin as they truly exist and allow each individual reader the fair chance of making his own independent assessment of the facts and drawing his own inferences as he may. A person who habours malice against another is very unlikely to go out of his way, on his own initiative, to obtain that other person’s views concerning what someone else said about his person and conduct. In my further view, the quoted passages illustrate the fact that even though the 3 rd Defendant may not have “investigated” the story as told by the 1 st defendant in the manner of an Investigating Police Officer or may not have had a formal or personal interview with the Plaintiff, it nevertheless, somehow obtained his views on the unfolding development. How the views were obtained is immaterial, because the parties never made that an issue before me that is not in issue here. Moreover, the Plaintiff as PW1 under cross-examination, stated before us on the 22 nd of September, 2016 that he had no objection when he read the story imputed to him in Exhibit B as his reaction to the 1 st Defendant’s utterances. Indeed, those views of his were what the paper must have published as something intended to balance the perspectives. Finally, I would like to emphasize that proof of publication of a libelous statement is only one step towards seeking redress. The plaintiff must also prove that his esteem and standing was lowered in the eyes of right –thinking members of the public. See, Iwueke v Imo Broadcasting corp (2005), 17 NWLR (Pt. 956), Nsirim v Nsirim (1990)

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SC 174 at 184. In Bank of the North v Adegoke (2008) 2 WRN 159 (CA), it was stated that: “A person’s estimation of himself after the publication of the alleged defamatory matter is irrelevant. It is the impression a third party forms of the person allegedly defamed that matters and unless and until that 3 rd party voices out his new impression of the party allegedly defamed there can be no defamation in the legal issue” As pointed out earlier, PW2, who was called to give evidence in this case as “the third party”, representing the public decided to speak differently from both sides of the mouth at the same. In his witness statement on oath he gave the impression that after reading the alleged defamatory material, he felt disappointed that such defamatory remarks should have ever been made against his revered boss of almost 30 years. However, under cross-examination, after admitting that he read the two versions of the story but that he believed that of the plaintiff and not the defamatory narrative of the 3 rd Defendant. Having said this he has shown that he did not feel that the Plaintiff suffered defamation. At best his two statements amount to self – contradiction, a situation that is made worse by the law, which prohibits me from cherry-picking the statements. "The law is that where the witnesses of a party give conflicting evidence, it is not the duty of the court to choose and pick which to believe; as such evidence is rendered unreliable." Per DANJUMA, J.C.A. (P. 32, paras. C-D) in ODERINDE v. AYODELE & ANOR ee Areha v. State (1982) S.C 78 at 88-89, Nansol v. State (1993) 6 SCNJ 152 and Ibekendu v. Ike (1993) 7 SCNJ 80."PER MUHAMMAD, J.C.A (P.29, paras. E-F) In view of all I have said so far, issue numbers 4 and 5 are hereby resolved against the Plaintiff. The Plaintiff is hereby non-suited against the 1 st defendant on the specific strength of the failure of the Plaintiff to establish a prima facie case against him by neglecting to comply with Section 84 of the Evidence Act. The case is

Page | 30 however dismissed in respect of claims made by the plaintiff against the 3 rd and 4 th Defendants on account of the Plaintiff’s failure to prove that the publication by the 3 rd Defendant is defamatory of his character and person.

Valentine B. Ashi Hon Judge

Appearance: Prof Charles Ilegbune, SAN for the Plaintiff (Ike Ugwuoke, Esq, David Ikoro, Esq, F. U. P. Ofoma, Esq, and C. A. N. Udechukwu, Esq) Frank I. Chude, Esq (with E. F. Elam (Miss) and W. I. Achuke, Esq) for 2 nd and 3 rd Defendant. No appearance for the 1 st Defendant

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