Monday 7 December 2015

Chief NkemayangVsNdi Eugene and SoneBayen:

Limbe Court dismisses case on technical grounds
- Apparently undaunted and dissatisfied, Chief Nkemayang files in yet another suit
By Essan-Ekoninyam in Yaounde with reporting from Limbe
The legal battle pitting Chief FoanyiNkemayang Paul, and Ndi Eugene Ndi and Franklin SoneBayen has ended with a non-suit or dismissal by the Limbe Court of First Instance. But just before the learned judge passed the ruling on 2 December, an agent for a bailiff served Ndi and Bayen fresh summonses within the court premises to report to the Limbe Gendarmerie Brigade for another interrogation.            
                No reason was stated on the summonses but Nkemayang boastfully told Bayen’s lawyer that he prompted the summonses to reopen the same legal file for a retrial of Ndi and Bayen for defaming him.
                Contacted for comment, Bayen said, “It looks like Nkemayang has not said his last word. I may only comment later. But Nkemayang knows I never wrote anything about him. He knows better than me because he’s been in this thing for decades, that if he is convinced that Eugene Ndi’s story is untrue, the law requires that he submits a rejoinder stating his side of the story even before taking any legal action and he knows better than me that any truth in his side of the story will do him more good than his resort to legal battles that may only be more damaging.”
                For his part, Ndi Eugene said he could only be happy that the court dismissed the case. He however refused to comment further, saying he has not had time to settle down after the court ruling especially as Nkemayang has brought a fresh suit against him. By press time yesterday, we did not succeed to get Chief Nkemayang on phone. He also did not reply to the SMSs we sent to him.

                Surprised that they were expected at the Gendarmerie at 2pm the same day they were awaiting a court ruling on the same matter, Bayen and Ndi, on the advice of their lawyers, noted on their summonses that they would honour the summonses that same day if the court session ended before 2pm. Their lawyers later negotiated a new date for their appearance at the Gendarmerie. Ndi and Bayen are expected at the Limbe Gendarmerie this Monday, 7 December for what could be the start of Act 2 of the case.
                Nkemayang, publisher of The Star newspaper first dragged the two younger journalists to court following an article by Ndi on 5 May 2014 claiming that Nkemayang and another journalist, John MbahAkuroh did not give full account of donations made to the Commonwealth Journalists Association (CJA Cameroon chapter) which Nkemayang heads and the Cameroon Anglophone Newspaper Publishers’ Association CANPA which Akuroh heads for 2014 World Press Freedom Day celebrations in Buea. Akuroh doubles as secretary general of CJA-C. The story was posted in the email group and Facebook page of the Cameroon Association of English-speaking Journalists (CAMASEJ). It was later culled from Facebook and published in Bayen’s Media People newspaper which traditionally reports on media practitioners and issues.
                Reacting to the story in an email on 14 May 2014, Nkemayang said, “Dear All, Because of my tight schedule, I hardly come on this forum. I read Ndi Eugene Ndi's concocted, biased and distorted report about the World Press Freedom Day in Buea after I returned from Fontem, Lebialem, for celebrations marking the disappearance of our Fon after numerous calls to me. Ndi, I am shocked and dismayed that you accused me of collecting an envelope from Source du Pays and only announced Supermont water and drinks. You also said I and John MbahAkuroh organized the World Press Freedom Day to line our pockets! You said, again, that there were only 50 Journalists during the WPFD at Parliamentarian Flats Hotel, Buea, on that May 3. You are requested to, within 24 hours, contact the authorities of Supermont and publish your findings on this same forum as well as retract all the lies you published, else, you risk prosecution. HRH Chief FoanyiNkemayang Paul.”
                Similarly, Akuroh wrote in an email also on 14 May 2014, “Dear Ndi/ Amabo, I have read with serious attention the material you published and the numerous reactions and worse of all, the fact that it left the forum and went to hard paper on the Media People. I am not ruled by emotions as Amabo is insinuating, but the accusation is too grave and deserves to be handled as such. What makes me even more bitter is the fact that we appeared to have wasted our time in Buea preaching the need to investigate stories before going to press. I certainly have a reputation to protect and the only way this shall be done is dragging Ndi and Bayen to court. Chief FoanyiNkemayang may be soft by requesting a rejoinder, I shall not. If anyone of you were to know how some of us even managed to get money from those sources, not necessarily gifts or donations then you shall support my drive to prosecute the duo. I shall stop at nothing until the entire world that now knows that I used associations to line my pockets get acquainted to the contrary of that story, the hard way! John MbahAkuroh.”
                Though both aggrieved men threatened to drag Ndi and Bayen to court to repair damage done to their reputations, only Nkemayang followed his threat with action. Nkemayang wanted the court to sentence Ndi and Bayen to five years each in jail plus a 10 million FCFA fine involving Bayen’s newspaper Media People. Akuroh did not respond to our requests for his comments on why he did not also sue Ndi and Bayen, though he became a prosecution witness in the case brought forth by Nkemayang.
                Passing her ruling on the matter that began in July 2014 and ran for 17 months with 29 court sessions, Magistrate Esther Ayuk said she was dismissing the case following an objection raised by Barrister Ernest AshuEgbe, counsel for second accused Bayen, because of non-respect of Article 160 of the Criminal Procedure Code. She said though Nkemayang, the Complainant, opted for a private prosecution, the submissions of the Legal Department were mandatory for the criminal charge to proceed, but that was not the case.
                Nkemayang had filed for a private prosecution, implying that hearings took place in the magistrate’s chambers, not in open court. Observers believe he thus wanted a hasty, secret trial to quickly and quietly punish Ndi and Bayen, but in that haste he failed to fully comply with laid down procedure. 
                Smelling a rat when summonses were first issued in July 2014, a press release by Bayen’s Media People on 26 July stated: “We find the method of seeking to serve a summons after close of business on a Friday for a matter expected to come up the following Monday as simply malicious and evidence that the perpetrators have diabolic intentions. It looks like a way of denying MrBayen time to brief his lawyers and obtain proper legal counsel. Their intention may be to take him and the co-accused, Eugene Ndi by surprise, run them through a hasty kangaroo trial and get them jailed and silenced!”
                Lawyers close to the case say even besides the procedural flaw in Nkemayang’s case, his efforts to save his name were doomed. Testimonies by him and his witnesses appeared contradictory as each of them declared different total sums of cash collected from donors. While Nkemayang declared having collected over one million francs CFA in donations, his CJA financial secretary, Francis Tim Mbom who is also The Post’s Limbe correspondent and Nkemayang’s third prosecution witness, said he only knew about 300,000 FCFA which he personally collected. He denied any knowledge of the sums declared by Nkemayang. Likewise, Akuroh’s financial record did not match Nkemayang’s.
                Picking holes in their contradictory testimonies during cross-examination, Bayen’s lawyer, Barrister Egbe of Horizon Law Chambers in Limbe said if funds collected by different officials of the associations could not be pulled together, it was only probable that general accountability would be questionable. Driving home his point, Egbe said if the Financial Secretary of Nkemayang’s association did not have a record of the association’s funds, who would? He said that meant there was total unaccountability as each individual seemed to have pocketed and spent or kept donations they each received without a central purse.  He pointed out that four associations including CAMASEJ and CUJ announced they were jointly organizing the event in Buea but donations were received individually and there were no minutes after their joint meetings to show how they planned to jointly manage funds collected.
                For Nkemayang those were not the focus. He pinned his case on Ndi’s claim that Source du Pays donated cash besides mineral water and soft drinks. He insists there was no cash involved and challenged Ndi to show proof of the contrary.
                Cross-examining Ndi, author of the story, Nkemayang’s lawyer, Barrister Stanislaus Ajong asked the first accused if he checked with the juice and water producing company to prove the veracity of his claim. Ndi said Akuroh told him so at the Musango bus station at Mile 17 Buea after the event in the presence of two witnesses (Doh James of The Sun and Gerald Ndikum of The Horizon) who were not brought to court. He said in Akuroh’s double capacity as secretary general of Nkemayang’s CJA and president of CANPA which was also a major organizer of the event, he trusted him as an unimpeachable source.
                However, the fourth prosecution witness Akuroh, presented a bailiff’s report in court attesting that Doh James had disclaimed ever hearing Akuroh telling Ndi that Source du Pays donated cash.
                Third prosecution witness, Ewang Manga Bell who is neither an official of CJA or CANPA but was assigned to collect the Source du Pays donation confirmed Nkemayang’s denial of cash involvement. But Bayen’s lawyer wondered why a non-official of the associations was delegated on such an important mission. Barrister Egbe said if Nkemayang set aside officials of his association and preferred to assign Bell, his employee at The Star newspaper, to collect cash on behalf of CJA, that was tantamount to a private arrangement on official business, hence accountability could not be transparent.
                Also during Barrister Ajong’s cross-examination, Bayen said he considered Ndi’s story as the protest of a whistle-blower and published it as such. He said if Nkemayang was convinced that Ndi’s story was false, the law provided for him to send a rejoinder, stating the truth as a first step towards seeking redress. Bayen said his paper, Media People was still waiting to publish Nkemayang’s rejoinder.
                Bayen said if he wanted to treat Ndi’s story as a journalist’s report, he would have applied the diligence he is known for in news editing and reporting. He referred the court to unsolicited comments made by readers on the beauty of his Media People journalism which he had compiled and published in his newspaper to demonstrate he was not a reckless journalist as his accusers claimed.
                Further debunking Nkemayang’s claim that the accusations in the story published by Ndi and Bayen had gravely damaged his reputation and caused his newspaper to lose readership and advertisers, Bayen’s lawyer reminded Nkemayang that he was guest speaker at the 2015 World Press Freedom Day conference in Bamenda where he presented a paper and was moderator of a panel discussion by lawyers in Fako division on 18 April 2015 broadcast on HiTV in Buea. He said a man who had lost his reputation in the eyes of people of good standing could not be invited by people as respectable as lawyers and his own colleagues, journalists.
                Barrister Ernest Egbe was further helped in his line of argument when under cross-examination he asked the second prosecution witness EwangNdumbe Bell who is The Star’s Douala representative if their newspaper’s sales and advert inflow had dropped. Bell said not at all. He said the paper was thriving as usual, a response which gravely angered Nkemayang who could not conceal his disappointment. Nkemayang murmured his disappointment and waved of his hand at Bell for his responses which he said were “useless”.
                Satisfied with confessions he obtained from Nkemayang and his witnesses, Bayen’s learned counsel thus prayed the court to disregard Nkemayang’s grounds for suing the accused with claims that he and his newspaper had suffered damages.
                Barrister Egbe later raised an objection to the procedure of the case, pointing out violation of Article 160 of the CPC. That was the basis on which the learned judge declared Nkemayang’s case a nullity.
                But apparently aware in advance that his case was doomed, Nkemayang got Ndi and Bayen served fresh summonses for the same case even before the judge ruled to dismiss the pending one. It is left to be seen how a court will entertain a case file that was re-opened even before the same court had closed it. A lawyer who requested to remain anonymous told The Median that Nkemayang’s new action is tantamount to bringing a case to the same court twice while the said court was still deliberating on it. He said Nkemayang’s new faulty procedure was equally destined for another nullity.


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