June 20, 2009

Court bars Yar’Adua from suing for defamation

A Federal Capital Territory (FCT) High Court Thursday barred President Umaru Yar’Adua from suing till he leaves office.

The court gave the ruling while sitting in an appellate capacity in a criminal defamation suit instituted against the Leadership Newspapers Group by the President.

The court adjourned the case indefinitely until the President would no longer enjoy the immunity of his office. The newspaper had, in one of its weekend titles of November 8, 2008, reported that the President was ill.

The President, however, slammed a five-count charge against the Chairman/Editor- in-Chief, Sam Nda-Isaiah; Abdul-Razaq Bello (Editor, Daily), Lara Olugbemi (Weekend Editor) and Simon Imobo-Tswam (reporter), before a Chief Magistrate Court, Abuja.

According to the First Information Report (FIR), the accused allegedly conspired to indulge in illegal act, defamation of character, injurious falsehood, painting or engraving matter known to be defamatory and sales of painted or engraved materials containing defamatory matters.

The Director of Public Prosecution (DPP), Salihu Aliyu said the offences are punishable under Sections 79, 392, 393, 394 and 395 of the Penal Code Cap 532 Laws of the Federation.

Protests from the company that the President cannot sue while still in office was thrown out by the court, hence the appeal.

However, a two_member panel of the appellate court, led by Justice Abubakar Talba, yesterday ruled that the Chief Magistrate, Sunday Ochimana, erred in law when he refused to adjourn the case sine die, even when it was obvious that there is an infringement on the rights of the accused persons as enshrined in section 36 (5) and (6) of the 1999 Constitution.

Allowing the appeal, he set aside the ruling of the chief magistrate.
Justice Talba, who read the ruling, said it is the duty of the court when interpreting the constitution to adopt a literal interpretation; they must be read in their best and ordinary meaning.

‘’Section 308 of the 1999 Constitution has undergone intense scrutiny by superior courts in the country and from the word used by the framers of S. 308, it is clear that that it is intended to confer absolute immunity without barring them from enforcing their fundamental human rights,” he added.

He cited the cases of Tinubu V. IMB Securities, in the Court of Appeal and Mediatech V. Lam Adesina, where the court held that the respondent was shielded from prosecution.
By the provision of Section 308 of the 1999 Constitution, the court held that the President is not compellable as a witness and cannot waive the immunity conferred on him.
It further held that the constitution had debarred the accused persons of their fundamental rights as contained in S. 36 of the constitution, as they are incapacitated in calling the President as a witness.
‘’By virtue of S. 36 [D] of the constitution, an accused person has the right to call all witnesses. The same person do not specify from which angle the witness should come from. Now that the Accused cannot secure that the issue of fair hearing comes into play’.
Justice Talba said: ‘’We cannot but agree that the Chief Magistrate erred in law when he ruled otherwise, especially concerning the provision of S. 36 of the constitution of the Federal Republic of Nigeria. The Chief Magistrate was wrong when he refused to adjourn the case sine die.
‘’There is merit in this appeal and the ruling of the chief magistrate is set aside. This case is set aside sine_die”.