SERAP Challenges ₦100m Defamation Judgment, Says No Evidence Linked DSS Officers to Publications

The Socio-Economic Rights and Accountability Project (SERAP) has asked the Court of Appeal sitting in Abuja to overturn a judgment of the Federal Capital Territory High Court awarding N100 million in damages against the organisation in a defamation suit instituted by two officers of Nigeria’s State Security Service (SSS), insisting that the claimants failed to establish by credible evidence that the publications in question referred specifically to them.

The appeal, which is scheduled for hearing on Friday, challenges the judgment delivered by Justice Yusuf Halilu on May 5, 2026, as well as the award of damages and consequential orders, including the directive requiring SERAP to publish an apology.

In its Appellant’s Brief of Argument, dated September 3, 2026 and filed before the Court of Appeal by its counsel, Tayo Oyetibo, SAN, SERAP raised 24 grounds of appeal, placing before the appellate court a series of questions concerning the essential ingredients of defamation, the evidential burden required to establish identification of a claimant, the competence of evidence relied upon by the trial court and the constitutional protection of freedom of expression, particularly in relation to public-interest advocacy.

At the centre of the appeal is SERAP’s contention that the two officers were not named in the publications that formed the basis of the lawsuit and that the physical descriptions used in the reports were too general to establish that the publications referred to the particular individuals who subsequently sued the organisation.

SERAP said the publications did not identify the officers by their names, ranks, designations, offices or photographs, arguing that the burden therefore remained on the claimants to establish through evidence that reasonable readers would have understood the descriptions to refer specifically to them.

According to the organisation, that evidential link was never properly established before the trial court.

“The central issue in this appeal is whether the respondents established by credible evidence that the publications complained of referred to them,” SERAP stated, stressing that the publications did not name the respondents and that the descriptions relied upon were merely general physical descriptions.

The dispute arose from publications made by SERAP on September 9, 2024, concerning an alleged visit by DSS officials to the organisation’s Abuja office.

The publications followed SERAP’s call on President Bola Tinubu to investigate allegations of corruption at the Nigerian National Petroleum Company Limited (NNPCL) and reverse fuel price increases. SERAP subsequently alleged that DSS officers had unlawfully entered its Abuja office.

The reports referred to officers of the SSS/DSS and included descriptions such as “a tall, large, dark-skinned woman” and “a slim, dark-skinned man”. The officers were not identified by name in the publications.

The two officers subsequently instituted the defamation action, arguing that the publications referred to them and had caused damage to their reputations.

SERAP, however, has maintained before the Court of Appeal that the respondents failed to produce independent evidence demonstrating that members of the public actually understood the descriptions to refer to them.

The organisation argued that no member of the public was called to testify that they had read the publications and understood them to identify the two officers.

It also challenged the reliance placed on alleged reactions on social media, arguing that such reactions were not tendered in evidence.

“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,” SERAP said in its brief.

The organisation further argued that the proper legal test should be whether an ordinary reasonable reader, upon reading the publications, would associate the words complained of with the particular claimants.

According to SERAP, the question was not simply whether the officers physically resembled the descriptions contained in the publications, but whether the publications, at the time they were made, contained sufficient information to enable reasonable readers to identify the officers.

The organisation is particularly challenging the trial court’s reliance on its own observation of the physical appearance of the respondents during the proceedings.

SERAP argued that the trial court effectively supplied an identifying link that the claimants themselves had failed to establish through evidence.

“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 organisation argued.

SERAP maintained that this approach was legally problematic because the relevant question was whether the publications identified the respondents when they were published, rather than whether the respondents happened to fit the descriptions when they appeared before the judge.

The appeal also raises a procedural challenge concerning the identity of the party against whom the original action was commenced.

SERAP argued that the respondents initially commenced the action against the Socio-Economic Rights and Accountability Project, which it described as a non-juristic entity, before subsequently amending the originating process to substitute the Incorporated Trustees of the Socio-Economic Rights and Accountability Project.

The organisation’s legal argument is that an action commenced against a non-juristic person is fundamentally defective and cannot simply be treated as a misnomer capable of being corrected through amendment.

SERAP contends that an amendment cannot cure what it describes as a void originating process or transform a non-existent legal party into a distinct juristic entity.

Another major issue raised in the appeal concerns the evidence of the first respondent.

SERAP argued that the first respondent’s witness statement on oath was signed at her lawyers’ chambers rather than before a Commissioner for Oaths and maintained that the statutory requirements governing the administration and execution of an oath were substantive requirements rather than mere technicalities.

According to SERAP, a witness statement that was not properly sworn could not subsequently be validated merely because the witness adopted it in open court.

The organisation therefore wants the Court of Appeal to examine whether the evidence upon which the trial court relied was legally competent and capable of sustaining the judgment.

Beyond the procedural and evidential questions, SERAP’s appeal raises a wider issue concerning the relationship between protection of reputation and freedom of expression, especially where the subject matter concerns the conduct of public officials and security agencies.

The organisation argued that the publications should not have been interpreted by isolating individual words such as “invasion”, “harassment”, “intimidation” and “unlawful” from the broader circumstances in which the reports were made.

SERAP said the publications concerned the conduct of State security officials who had visited its Abuja office without prior notice, sought access to staff and management and whose presence generated concerns and interactions with members of its staff.

Its position is that its description 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,” the organisation argued.

SERAP also maintains that the evidence before the trial court did not establish that the substance of its publications was false.

The organisation argued that the respondents could not succeed merely by demonstrating that they disagreed with SERAP’s account of the events or with the way the organisation characterised what occurred.

The appeal further invokes the defence of qualified privilege, with SERAP arguing that the defence could only be defeated by proof of express or actual malice.

According to the organisation, no such evidence was established.

“Mere disagreement with the Appellant’s account does not, without more, establish malice,” SERAP argued.

The organisation has also placed constitutional freedom of expression at the heart of its case, particularly the rights protected under Section 39(1) of the Nigerian Constitution.

SERAP argued that the constitutional protection of freedom of expression is especially important for civil society organisations whose activities necessarily involve scrutiny of public institutions and commentary on matters relating to human rights, accountability and the rule of law.

It maintained that officers of public security agencies do not become immune from legitimate criticism concerning the performance of their public functions simply because of their positions.

“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,” SERAP stated.

The organisation said the law must strike an appropriate balance between protecting individual reputation and preserving the right of citizens and civil society organisations to comment on matters of public interest.

That balance, it argued, becomes particularly significant where the speech or publication concerns security agencies and other public authorities whose activities have implications for fundamental rights and public accountability.

SERAP further criticised the trial court for what it described as a failure to properly consider the defences available to it.

It described the N100 million damages award as excessive and unsupported by the evidence, arguing that the trial court relied on assertions that the publications had affected the respondents mentally and psychologically and had gone viral without sufficient evidence establishing the extent of the alleged publication or demonstrating specific professional, financial or reputational injury.

“The award against SERAP was therefore not only excessive but also arbitrary and ought to be set aside,” the organisation argued.

The appeal also challenges the finding that the alleged suspension of the two officers was connected to the publications, maintaining that the claim was not supported by independent documentary evidence.

SERAP consequently argues that the finding of liability cannot survive if the underlying findings on identification, falsity and justification are found to be erroneous.

It has urged the appellate court to scrutinise the evidence afresh and determine whether the essential elements required to sustain a defamation action were established by the respondents.

The organisation also characterised the original suit as frivolous and vexatious, arguing that the publications, as contained in Exhibit D2, were directed against the SSS as an institution rather than against the two individuals who subsequently brought the action in their personal capacities.

This, according to SERAP, raises a fundamental question about whether individuals serving within a public institution can successfully claim personal defamation from a publication directed at the institution when the publication does not expressly identify them.

The Court of Appeal will therefore be confronted with both narrow legal questions arising from the particular case and broader issues concerning the boundaries of public-interest journalism, civil society advocacy, institutional criticism and protection of individual reputation.

For SERAP, the case is not simply about the N100 million damages awarded by the trial court but about the legal threshold that must be satisfied before an organisation can be held personally liable for publications concerning the conduct of public institutions and their officials.

The organisation has maintained that public-interest advocacy should remain protected where it is conducted lawfully and on the basis of factual circumstances, particularly where the issues involve human rights, accountability and the conduct of government institutions.

SERAP said it remains committed to “lawful and evidence-based advocacy” and argued that civil society organisations should be able to scrutinise and comment on the conduct of public institutions without being exposed to disproportionate legal consequences.

It is consequently asking the Court of Appeal to set aside the judgment of the Federal Capital Territory High Court, discharge the liability imposed on the organisation and overturn the consequential orders, including the order for an apology.

The appeal is expected to place before the appellate court questions concerning the evidential threshold for identification in defamation proceedings, the interpretation of publications in their full context, the competence of witness evidence, the availability of defences such as qualified privilege and the constitutional protection of freedom of expression.

The outcome could therefore have significance beyond the immediate dispute between SERAP and the two SSS officers, particularly for civil society organisations, journalists and other actors whose work involves public scrutiny of security agencies and government institutions.

SERAP has urged the Court of Appeal to uphold what it describes as the requirements of due process and constitutional protection of freedom of expression and to set aside the judgment and consequential orders challenged in the appeal.

The appeal is scheduled for hearing on Friday.