The Socio-Economic Rights and Accountability Project (SERAP) has urged the Court of Appeal sitting in Abuja to set aside the judgment of the Federal Capital Territory High Court awarding N100 million in damages against SERAP in a defamation suit brought by two officers of Nigeria’s State Security Service (SSS).
The appeal is scheduled for hearing on Friday.
The appeal, filed by SERAP following the judgment delivered by Justice Yusuf Halilu on 5 May 2026, challenges the findings of liability, the award of damages and the consequential orders, including the order requiring SERAP to publish an apology.
The Appellant’s Brief of Argument, dated 3 September 2026 and filed at the Court of Appeal by SERAP’s counsel, Tayo Oyetibo, SAN, is based on 24 grounds and raises important questions concerning the essential elements of defamation, the evidential burden of establishing identification, the competence of the evidence relied upon by the trial Court, and the protection of freedom of expression and public-interest advocacy.
SERAP said: “The central issue in this appeal is whether the respondents established by credible evidence that the publications complained of referred to them. The publications did not name the respondents, and the descriptions relied upon were general physical descriptions which did not, without more, identify the particular individuals who brought the action.”
The lawsuit arose after SERAP published an account on 9 September 2024 alleging that DSS officers had unlawfully entered its Abuja office, following the organisation’s call on President Bola Tinubu to investigate allegations of corruption at the Nigerian National Petroleum Company Limited (NNPCL) and reverse fuel price increases.
The publications referred to officers from the SSS/DSS and described them, among other things, as “a tall, large, dark-skinned woman” and “a slim, dark-skinned man”. The officers were not named in the publications.
SERAP’s Brief of Argument reads in part: “The alleged suspension of the 1st and 2nd Respondents was likewise not supported by independent documentary evidence. The award against SERAP was therefore not only excessive but also arbitrary and ought to be set aside.”
“The learned trial Judge relied, inter alia, on assertions that the publication had affected the 1st and 2nd Respondents ‘mentally and psychologically’ and had ‘gone viral’, without sufficient evidence establishing the extent of the publication or any specific professional, financial or reputational injury suffered by the Respondents.”
“The award of liability cannot stand where the essential findings on falsity and justification were not supported by the evidence We respectfully submit that the finding of liability and consequential award of damages cannot stand once the findings upon which they were founded are shown to be erroneous.”
“Where a claimant is not expressly named in a publication, the burden remains on the claimant to establish by evidence the circumstances from which a reasonable reader would understand the publication to refer specifically to that claimant. That essential link was not established in this case.”
“Neither publication identified the respondents by name, rank, designation, office or photograph. The descriptions relied upon were physical descriptions which, on the evidence before the trial Court, were not unique to the respondents.”
“The respondents pleaded that members of the public and persons within the SSS understood the publications to refer to them, but no member of the public was called to testify that they had read the publications and understood them to refer to the respondents.”
“No independent witness was called to establish the alleged identification, while the social-media reactions relied upon by the respondents were not tendered in evidence.”
“The law is settled that the words complained of in an action for defamation must be considered from the standpoint of the ordinary reasonable reader. The question is whether a reasonable person reading the publication would associate the words complained of with the claimant.”
“The significance of this principle in the present appeal is considerable. The two SSS/DSS officers were not named in either publication.
“Their case therefore depended upon establishing by evidence the factual circumstances connecting the descriptions contained in the publications to their particular identities.”
“The trial Court consequently supplied the missing identifying link by relying, among other things, on its own observation of the physical appearance of the respondents in Court.”
“The trial Court could not properly supply by its own observation the essential identifying link which the respondents were required to establish by evidence.
“The issue was whether the publications identified the respondents when they were published, not whether the respondents happened to fit the descriptions when they appeared before the Court.”
“The respondents instituted this action at the trial Court by initially filing a Writ of Summons against the Socio-Economic Rights and Accountability Project, a non-juristic person.
“The respondents subsequently amended their Writ of Summons to substitute the said non-juristic entity with the Incorporated Trustees of the Socio-Economic Rights and Accountability Project.”
“An action commenced against a non-juristic person is fundamentally defective and does not constitute a misnomer which is capable of amendment. An amendment cannot cure a void originating process nor effect the substitution of a distinct juristic entity for a party that does not exist in law.”
“The evidence before the trial Court established that the first respondent signed her witness statement at her lawyers’ chambers rather than before a Commissioner for Oaths. The statutory requirements governing the administration and execution of an oath are not matters of mere formality.”
“A witness statement on oath which was not properly sworn cannot be retrospectively validated simply because the witness subsequently adopted the statement in open Court. Adoption cannot cure a fundamental defect in the manner in which the statement was sworn.”
“There is no such ambiguity here. The present case is materially different and the authority relied upon does not justify the learned trial Judge’s failure to properly consider the first respondent’s admission concerning the execution of her witness statement on oath.”
“The publications ought to have been read as a whole and in their proper factual and contextual setting. Particular words and expressions, including ‘invasion’, ‘harassment’, ‘intimidation’ and ‘unlawful’, should not have been isolated from the facts and circumstances giving rise to the publications.”
“The publications concerned the conduct of State security officials who visited SERAP’s Abuja office without prior notice, sought access to staff and management, and whose presence generated concerns and interactions with SERAP staff.”
“SERAP’s assessment and characterisation of those events constituted comment on a matter of legitimate public interest. The fact that the respondents disagreed with that characterisation does not, without more, establish defamation.”
“SERAP had established the factual foundation for the publications, and the evidence before the trial Court did not establish that the substance of the publications was false. The respondents could not succeed merely by demonstrating that they disagreed with SERAP’s account or characterisation of the events.”
“Qualified privilege may be defeated by proof of express or actual malice. No such evidence was established. Mere disagreement with the Appellant’s account does not, without more, establish malice.”
“Section 39(1) protects the freedom to hold opinions and to impart information and ideas. That protection is particularly important for civil society organisations whose work necessarily involves scrutinising public institutions and commenting on matters affecting human rights, accountability and the rule of law.”
“Officers of a public security agency do not, by virtue of their office, become immune from legitimate criticism concerning the manner in which public functions are performed.”
“The right to comment freely on matters of public interest is one of the fundamental rights of free speech guaranteed to the individual in our Constitution.”
“The protection of reputation and the protection of freedom of expression must be carefully balanced. That balance is particularly important where the speech concerns the conduct of security agencies and other public authorities.”
“The trial Court failed to consider the defences relied upon by the Appellant which were factually and legally available to the Appellant. The imposition of liability and award of outrageous damages were not supported by the evidence led in Court.”
“The suit of the 1st and 2nd Respondents was frivolous, vexatious and lacked merit given that the publications in question, as shown in Exhibit D2, were made against the SSS as an institution, yet the two unidentified 1st and 2nd Respondents filed this suit in their personal capacities.”
“The central issue in this appeal is whether the essential elements of defamation were established by evidence and whether legitimate public-interest criticism can properly be transformed into personal liability without satisfying those requirements.”
“The finding of liability and consequential award of damages cannot stand once the findings upon which they were founded are shown to be erroneous. The learned trial Judge misdirected himself on identification, the meaning of the publications, falsity and the Appellant’s defences.”
“SERAP remains committed to lawful and evidence-based advocacy on matters affecting human rights, accountability and the rule of law. Civil society organisations must be able to scrutinise and comment on the conduct of public institutions without the threat of disproportionate legal consequences.”
“We urge the Court of Appeal to uphold the requirements of due process and the constitutional protection of freedom of expression and to set aside the judgment and consequential orders challenged in this appeal.”
(SERAP)
