Avraham Modechai Zabusky & Ors. V. Israeli Aircraft Industries (2006)

LawGlobal-Hub Lead Judgment Report

ISA AYO SALAMI, J.C.A.

This is an interlocutory appeal against the ruling of the High Court of Lagos State declining jurisdiction to entertain a defamatory action upon a preliminary objection.

The plaintiffs’ claims by a writ of summons, dated 7th March, 2002, against the defendant are as follows-

“(a) $5,000.000.00 USD as damages for the libelous words published by the defendant or equivalent sum in Naira at the prevailing rate of exchange at the time judgment is delivered.

(b) $5,000,000.00 USD or equivalent sum in Naira at the prevailing rate of exchange at the time judgment is delivered as exemplary damages against the defendant.

(c) an injunction restraining the defendant, its servants, agents, privies from further repetition and/or publication of the said words or any similar words defamatory of the plaintiffs.

(d) a written apology from the defendant to the plaintiffs to be published in three prominent Nigerian Newspapers.”

Statement of claim dated 6th March, 2002 was duly filed. The place or address for service of both the writ of summons and the statement of claim was expressed to be outside jurisdiction. The trial court granted leave to the plaintiffs to inter alia issue and serve the writ of summons, statement of claim as well as other processes in the instant proceedings on the defendants at its head office which is situated at Ben Gurion International Airport 70100 Israel outside the jurisdiction of the court.

Before the return date the defendant’s solicitors caused on 2nd July, 2002, a notice of intention to rely on preliminary objection pursuance of Order 2 and Order 9 r 11 of the High Court of Lagos State (Civil Procedure) Rules, 1994. The ground upon which the objection was brought were as follows –

“(i) the defendant/applicant does not reside in/or carry on business in Nigeria.

(ii) the alleged cause of action in this suit occurred outside the jurisdiction of this Honourable Court.

“The preliminary objection was supported by affidavit.

In response to the preliminary objection, the plaintiff deposed to a counter-affidavit on 28th August, 2002.

Learned counsel for the defendant argued that the tort of defamation alleged by the plaintiffs was committed within the Israeli Embassy to whose ambassador the allegedly defamatory letter was addressed and the court lacked jurisdiction to entertain the claim pursuant to the diplomatic immunity which the addressee, the ambassador enjoyed. The plaintiffs, in reply, contended that since it had no claim against the ambassador, the defendant’s reference to the ambassador’s diplomatic immunity, as affording the said ambassador immunity, had no bearing to the plaintiffs’ claim. Plaintiffs also argued that the defendant’s objection could not succeed because it amounted to a demurrer which has been abolished by the High Court of Lagos State (Civil Procedure) Rules, 1994.

The learned trial judge, Oyefesobi, in his reserved and considered ruling, stated thus –

“Publication cannot be to the world at large. The averment of publication to “All operator in the Nigerian Aviation” does not constitute valid publication in law. There cannot be publication to Mr. G. Golan, the former Israeli Ambassador and his staff in the Israeli Embassy his personal immunity and his official staff covers inviolability of his residence. His residence is outside jurisdiction of this court.”

Learned trial judge further on in the ruling stated thus –

“The cause of action in libel arises in the place where publication has been made. In the instant case, the only person to whom publication has been proved is Mr. G. Golan, the Israeli Ambassador and in the Israeli Embassy. The publication took place in a foreign land and it is therefore outside the jurisdiction of this court.”

Learned trial judge then upheld the preliminary objection of the defendant/applicant and struck out the suit. The plaintiffs were consequently unhappy and being aggrieved appealed to this court on five ground of appeal.

In accordance with the practice, and procedure of this court, briefs of argument were filed and exchange by learned counsel for both parties. Learned counsel for plaintiffs (hereinafter referred to as the appellants) formulated the following four issues in the appellants’ brief of argument –

“(a) whether the lower court was correct to have struck out the appellants’ suit upon the respondent’s preliminary objection brought pursuant to order 2 and order 9 rule 2.

(b) whether the lower court was correct to hold that by virtue of the provisions of the Diplomatic Immunities and Privileges Act, Cap 99 Laws of the Federation of Nigeria, 1990, the publication of the libelous matter at the Israeli Embassy in Lagos, Nigeria was made in foreign land outside the jurisdiction of the court.

(c) whether the lower court was correct to hold that the fact that the alleged libellous matter was published to “all operators in the Nigeria Aviation Industry” does not constitute libel because the words were not published to any specific person.

(d) whether the respondent’ application does not constitute a demurrer which has been abolished by the provisions of Order 23 of the High Court of Lagos State (Civil Procedure) Rules.”

On the other hand, the respondent framed two issues for determination in this appeal –

(1) whether the Lagos State High Court has jurisdiction to try the matter.

(2) whether there was publication of the alleged libel.

The two parties failed to relate their respective formulation to the grounds of appeal contrary to the express provisions of Order 6 r 3 (1) of Court of Appeal Rules, 2002 which requires the parties to relate the issues formulated by them to or show that they emanate from a ground or grounds of appeal. The appellant identified only four issues from their five grounds of appeal, it is therefore not clear which of the issues derived from more than one ground of appeal or which of the five grounds of appeal is abandoned. The lackadaisical approach cannot assist quick dispensation of justice. Appellant having refused or failed to relate its issues to the grounds of appeal it can comfortably be held that the grounds are deemed abandoned. Relating issue to the grounds of appeal is not done for the fun of it. The essence of doing so is that when an issue is resolved in favour of an appellant, for instance, the ground or grounds of appeal related to such an issue succeed and they are allowed. Similarly if an issue is resolved against an appellant the ground or grounds of appeal from which the issue derived fail and are accordingly dismissed. The aggregate of this success or failure determine the outcome of the appeal itself.

The respondent, although formulated only two issues, proceeded to canvass another matter under paragraph 3.0 of its brief of argument under the title DEMURRER. This kind of practice is strange to our practice and procedure. It necessarily follows that the point was argued outside the issues and an unidentified grounds of appeal. The argument tendered under that sub-title is incompetent and liable to being struck out. The Supreme Court in the case of MSC Ezenba vs. S.O. Ibenema (trading under the name and style Solde Engineering Works Nigeria Ltd.) & Anor. (2004) All FWLR (Pt.223) 1786 refused to consider argument canvassed in support of ground of appeal and not issue. The court, however, considered the only issue that was pursued. In the circumstance only the respondents’ two issues will be considered.

The respondent has no appeal. It also argued the two issues it formulated together. The respondent’s brief it seems to me is not written in strict compliance with the provisions of Order 6 r 4(2) which required it to consider all material points of substance contained in the appellant’s brief. Sub-rule (2) of rule 4 of the Court of Appeal Rules, 2002 reads as follows –

“The respondent’s brief shall answer all material points of substance contained in the appellants’ brief and contain all points raised therein which the respondent wishes to concede as well as reasons why the appeal ought to be dismissed. It shall mutatis mutandis, also conform with rules 3(1), (2), (3), (4), and (5) of this Order.”

The appeal will consequently be determined on the appellants’ formulations. Issues 1 and 2 dove tail. They will therefore be taken together.

In appellants’ issues 1 and 2 it was contended that learned trial judge misconceived the intent and purpose of Order 2 of the Lagos State High Court (Civil Procedure) Rules when it declined jurisdiction on the strength of Order 2 rule 4 which provides for the area where an action may be brought. Learned counsel then submitted that the rule relied upon by the lower court does not provide for the situation arising in the instant case. Learned counsel argued that the judicial divisions referred to can mean no more than those created within Lagos State for convenience.

The jurisdiction, learned counsel for appellants submitted, is vested on the court below by the combined reading of sections 10 and 11(1) (a) of the High Court Law of Lagos State. Learned counsel then submitted that section 10 of the Lagos State High Court Law is in pari materia with section 9 of the High Court Law of Bendel State. On this basis learned counsel fell back on the case of Ezemo vs. Oyakhire (1985) 2 SC 260, 265 wherein the Supreme Court considered section 10(1)(a) of Bendel State High Court Law.

It was further submitted that the High Court can entertain a civil action where a cause of action arose in one State and the defendant resides in another country an action should be commenced in the judicial division where the action is founded on a tort committed within jurisdiction. Learned counsel referred to Order 8 r 1 (f) of the High Court of Lagos State (Civil Procedure) Rules, 1994 and Ezengwa & Ors. vs. Adimorah (1993) NWLR (Pt.271) 620, 625.

Learned senior counsel for respondent in the respondent’s brief contended that respondent is based and carries on business in the State of Israel. It is for that reason appellant sought and obtained leave to serve the writ and other processes on the respondent in Israel. Learned senior counsel also referred to Order 8 r 1 (f) of the Lagos State High Court (Civil Procedure) Rules as the procedure governing service of a writ outside jurisdiction.

Learned counsel then read paragraph 20 of the statement of claim before identifying three classes of persons as recipient of the malicious publication. Learned senior counsel then listed the persons as follows –

(1) The Israeli Ambassador

(2) The Nigerian Aviation Industry, and

(3) Staff and members of staff of the defendant.

Learned senior counsel in paragraph 4.7 of respondent’s brief contended as follows-

“4.7. the third category listed above, namely staff and members of staff of the defendant are presumably resident in Israel and accordingly publication of a libel to them is effected in Israel not Nigeria.” (underlining mine)

This contention is not based on evidence. It is speculative and courts are not given to speculation. They act on hard evidence. This is an instance the defendant/respondent ought to have asked for further and better particulars or wait till trial. This argument, in my respectful view, does not avail the respondent. The converse is equally a possibility.

I agree with the submission of the learned counsel for appellants that the learned trial judge was under misapprehension as to the intent and purpose of Order 2 rule 4 when it held that-

“I hold that the defendant is neither resident in Nigeria nor carry out business in Nigeria.”

Order 2 rule 4 provides inter alia as follows-

“All other suits may be commenced and determined in the judicial division in which the defendant resides or carries on business in Nigeria …. ”

It is manifestly clear from a section of the provisions of Order 2 rule 2 that it does not cover the situation that arose in this case, that is, a defendant resident outside Lagos State or Nigeria. The provision in my view refers to suits which can be commenced in the judicial division which are invariably created mainly for convenience. They do not vest nor divest High Court of Lagos State with jurisdiction.

Jurisdiction is conferred on the High Court in tortious action such as in the instant case by virtue of the relevant section of its High Court Law, Cap 60 of the Laws of Lagos State of Nigeria, 1994. This view is supported by the Supreme Court decision in Shell Petroleum Development Co. (Nigeria) Ltd. vs. Isaiah (2001) 11 NWLR (Pt.723) 168, cited in the appellants’ brief of argument. At page 179-180 the Supreme Court said –

“By jurisdiction is meant the authority which a court has to decide matters that are litigated before it, or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the court is constituted and may be extended or restricted by similar means…….”

On this authority, the High Court of Lagos State is statutorily conferred with jurisdiction by the reading of sections 10 and 11(1) (a) of the High Court Law of Lagos State, Cap 60 of the Laws of Lagos State of Nigeria, 1994 to hear and determine actions in tort. Sections 10 and 11(1) (a) of the Law read as follows-

“10. The High Court shall, in addition to any jurisdiction conferred by the Constitution of the Federation or by this or any other enactment, posses and exercise, within the limits mentioned in, and subject to the provisions of the Constitution of the Federation and this enactment, all the jurisdiction, powers and authorities which are vested in or capable of being exercised by the High Court of Justice in England.

11.(1) To the extent that such jurisdiction may be conferred by the legislature of the State, the jurisdiction vested in the High Court shall include-

(a) all the civil jurisdiction in which immediately before the twenty-seventh day of May be exercisable in the Lagos State, for the judicial hearing and determination of matters in indifference or for the administration or control of property and persons …. ”

As earlier observed section 10 of the Lagos State High Court Law Cap 60 recited immediately above is in pari materia with section 9 of the Bendel State High Court Law, Cap 65 of the Laws of Bendel State of Nigeria just as section 11(1)(a) is identically worded as section 10 of the Bendel State High Court Law, Cap 65 of the Laws of Bendel State 196 which provides inter alia as follows –

“10……… the jurisdiction vested in the High Court shall include all jurisdiction of the High Court of Justice in England which at the commencement of this Law, was, or at any time afterwards may be, exercisable in Bendel State for the judicial hearing and determination of matters in difference or for the administration and control of property and persons…………..”

(underlining mine)

The provisions of section 10 of the Bendel State High Court Law called for interpretation in Ezomo vs Oyakhire (1985) 2 SC 260, 265, where Supreme Court per Obaseki, JSC held inter alia as follows-

“The jurisdiction vested in the High Court shall include all civil jurisdiction of the High Court of Justice of England which at commencement …………..determination of matters in difference, or for the administration and control of property and persons….. The matter in difference here is slander committed within the jurisdiction of Bendel State High Court. From the above, it is obvious that the High Court has jurisdiction over torts committed within jurisdiction. Thus to enable the court to exercise this jurisdiction to hear and determine actions in tort, it is provided in Order 4 r 1 (f) of the High Court Rules that “service out of Nigeria of a writ, of summons or notice of a writ of summons may be allowed by the court or a judge in chambers whenever the action is founded on a tort committed within the jurisdiction.” (underlining mine)

On this authority, I agree entirely with the proposition of the learned counsel for the appellant that in line with the authority cited above and keeping with the applicable procedural requirement that where a cause of action in tort arose in one State and the defendant resides in another State or country an action should be commenced in the judicial division of the court in which the cause of action arose. Order 8 r 1 (f) of the Lagos State High Court (Civil Procedure) Rules cloths the court below with power to issue writ of summons, or notice of writ of summons or any other originating summons for service outside its jurisdiction, indeed out of Nigeria. Order 8 rule 1 (f) provides thus –

“1. Service out of Nigeria of a writ of summons or notice of summons may be allowed by the court or a judge in chambers when –

(a) x x x x x x

(b) x x x x x x

(c ) x x x x x x

(d) x x x x x x

(e) x x x x x x

(f) The action is founded on a tort committed within the jurisdiction.”

Is very similar to Order 4 rule 1 (f) cited in Ezomo vs. Oyakhire (supra) by the Supreme Court. One now wonders if the learned trial judge who gave leave for service of the writ of summons out of the jurisdiction could impliedly set out the order in the manner he did in the ruling on appeal. He cannot sit on appeal on his own judgment.

The question now crying for an answer is whether the tort in the instant case was committed within the jurisdiction of Lagos State High Court. Both parties sought support in the case of Ezengwa & Ors. vs. Adimorah (1999) 1 NWLR (Pt.271) 620, 625 where this court held that-

“In an action for libel, it is the place where the alleged libel is published that the cause of action arises.”

It seems to me that publication is the making known of the defamatory material, after it has been written, to persons other than the person of and concerning whom it was written. So the cause of action in libel is not the writing but the publication of the offending writing to another person. The crux of the matter in the instant appeal is contained in paragraph 20 of the statement of claim. It was averred thereon as follows –

“20. The plaintiff avers that the said defamatory words were published by the defendant falsely and maliciously to all operators in the Nigerian Aviation Industry, Mr. G. Golan the then Israeli Ambassador to Nigeria and staff and members of staff of the defendant.”

This averment was rightly observed by the respondent to refer to three classes of person. The three different group of persons are –

“(i) the former Israeli Ambassador to Nigeria.

(ii) the Nigerian Aviation Industry.

(iii) staff and members of staff of the defendant.”

I had rejected earlier, in this judgment, the respondent’s submission that the third category of persons listed immediately above were presumably resident in Israel on account of being speculative. The place of residents of these people is a matter for evidence and not given to speculation. It is therefore premature respectfully, at this stage, to speculate that they were resident in Israel and not Nigeria at the time material to the publication of the defamatory letter of and concerning the appellants. Apart from this, the inclusion of this group is not being opposed on any other ground including want of identity.

Thereafter, learned counsel for respondent proceeded as follows in paragraph 4.8 of the respondent’s brief-

“The preliminary objection raised in the court below was to the effect that even if the allegedly libelous letter was published to the persons referred to in paragraph 20 of the statement of claim, it was not actionable here. I propose to consider first, the alleged publication to the Israeli Ambassador and second by the alleged publication to the “all operators in the Nigerian Aviation Industry.”

Learned counsel then submitted that it is elementary that a foreign embassy is deemed to be a foreign soil. Accordingly communications passing between the Israeli government or companies or individual in Israel and the ambassador representing that country are not deemed to be received in Nigeria. Diplomatic business cannot be conducted if communications passing between an ambassador and is country are subject to the scrutiny of our courts. Whether such communalizations were or were not received by the ambassador are not matters for our courts. Learned senior counsel for respondent after making this statement recited sections 22(1) and section 1 of the Diplomatic Immunities and Privileges Act, Cap 99 of the Laws of the Federation 1990. He said that it defines personal immunities as follows –

“Immunity from suit or legal process (except in respect of things done or omitted to be done in the course of the performance of official duties) and includes inviolability of residence and appearance before any court or other tribunal as a witness.”

Again s.22(1) of the Act defines “Residence” as follows –

“Residence” in relation to the property of the government to which a person accorded personal immunities under Part 1 of this Act owes allegiance or to any property owned or rented by that person, means any house or other premises whatsoever used or occupied for diplomatic purposes by the head of a mission or by a member of the diplomatic staff thereof.”

It was then submitted in the light of the provisions of the Act, Cap 99 cited on behalf of the respondent that documents sent to the Ambassador of Israel are not published in Nigeria.

In this regard the learned trial judge stated as follows –

“There cannot be publication to Mr. G. Golan, the former Israeli Ambassador and his staff in the Israeli Embassy. His personal immunity and his official staff covers inviolability of his residence. His residence is outside jurisdiction of this court….

The cause of action in libel arises in the place where publication has been made. In the instance case, the only person to whom publication has been proved is Mr. G. Golan, the Israeli Ambassador and in the Israeli Embassy. The publications took place on a foreign land and it is therefore outside the jurisdiction of this court.”

Learned trial judge in my respectful opinion misconstrued the intent and purport of the enactment he heavily relied upon. There is nothing in the legislation which the learned senior counsel for respondent as well as the court relied upon to the effect that there cannot be publication to the ambassador because of “his personal immunity and his official staff covers inviolability of his residence.” The ambassador is not being sued for the publication to him of a defamatory document of and concerning the appellants. It is only when the ambassador was made a party to the action that he enjoys and could invoke the protection given to him under section 1(1) of the Act. Section 1(1) of the Diplomatic Immunities and Privileges Act, Cap 99 of the Laws of Federation, 1990 is recited immediately hereunder for ease of reference –

“S.1(1) subject to the provisions of this Act every foreign envoy and every consular officer, the members of the families of those persons, the embers of their official or domestic staff, and the members of the families of their official staff shall be accorded immunity from suit and legal process and inviolability of residence and official archives to the extent to which they were respectively so entitled’ under the law in force in Nigeria immediately before the coming into operation of t is Act.” (underlining mine)

Neither the ambassador nor members of their families nor members of their official or domestic staff nor members of the families of their official staff is made a party to the action. The ambassador has not even been invited to testify for the appellants. It had only been averred that publication of the slander was made to him. The law relied upon by the learned trial judge was misconstrued by him. On the pleadings before the court, the recipient of the defamatory letter are not conferred with any immunity in respect of the allegation against them.

Even if he was made a party or summoned to testify to the fact of the publication he could not demure because he had seized to be the Israeli Ambassador to Nigeria. In the pleading Mr. G. Golan was described as the “then Israeli Ambassador to Nigeria” and the learned trial judge took cognisance of his status in the ruling by referring to him as “the former Israeli Ambassador.” In this state of the pleadings, Mr. G. Golan was not entitled to and could not demand for protection under s.1(1) of the Act, Cap 99 already set out above. Learned senior counsel nor the learned trial judge failed to make reference to any diplomatic custom or statute which grants immunity from legal action to and inviolability of residence of a former ambassador or consular officer. The immunity of the diplomatic corps is only extant when he is on accreditation to a foreign court. It is settled that a diplomatic agent, head of a mission or a member of the diplomatic corps cannot be sued in his personal capacity for libel or slander except in relation to any professional or commercial activity.This immunity subsists until he returns to his country or such a reasonable period to do so at the expiration of his accreditation. But the immunity avails him irrespective of his leaving the country “with respect to acts performed by such a person in the exercise of his functions as a member of the mission.” The immunity could also be waived by the head of the mission or the sending country. See sections 2 and 5(2) of the Act. In all these circumstances, evidence will be required to ascertain the facts of each case. It will be necessary to know whether the cause of action stem from a professional or commercial activity or whether it was with respect to acts performed by such a person in the exercise of his functions as a member of the mission Because professional and commercial activity are not conferred with immunity and inviolability of residence. Paragraph (b) of sub-section (3) of section 1 provides as follows –

(4) nothing in this section shall –

(a) x x x x x

(b) confer the benefits of this section on any merchant or other trader within the meaning of any Act relating to bankruptcy or insolvency, who is in the service of a foreign envoy or foreign consular officer.”

See also Oluwalogbon vs. Govt. U.K. (2005) 14 NWLR (Pt.946) 760. The pleading at its present stage, indicates that the suit might turn upon commercial or professional interest. I am, therefore, unable to agree with the submission of the learned senior counsel for the respondent that diplomatic business cannot be conducted if communication passing between ambassador and home government are subject to the scrutiny of our courts. Learned senior counsel did not crave the support of any authority for this postulation and I am not aware of any authority conferring absolute privilege to foreign official documents. It is an area where there is little or no direct authority. The principle in English Law which applies here is based on public interest and as it appears to me will not apply to corresponding foreign official document. See Szalatnay-Statcho vs. Fink (1947) K.B.1.

I am next to consider the submission to the effect that the publication made to an ambassador in his residence be is one made in a foreign country and out of jurisdiction of the High Court of Lagos State. The High Court of Lagos State has jurisdiction by reading together sections 10 and 11(1) (a) of its High Court Law concurrent jurisdiction with Her Majesty’s High Court of Justice. It implies that the court like Her Majesty High Court is entitled to enforce principle of private international Law. This issue seems to be put beyond doubt in the Supreme Court decision in the case of Benson & Anor. vs. Ashiru (1967) NSCC 198, 201 thus:

“The rules of the common law of England on questions of private international law apply in the High Court of Lagos. Under these rules an action of tort will lie in Lagos for a wrong alleged to have been committed in another part of Nigeria if two conditions are fulfilled: first, the wrong must be of such a character that it would have been actionable if it had been committed in Lagos; and secondly it must not have been justifiable by the law of the part of Nigeria where it was done: Philips vs. Eyre (1970) LR 6 QB 1”

This is a matter for private International Law. At page 28 of the Eyre case (supra) Willes J stated thus –

“As a general rule, in order to found a suit in England, for a wrong alleged to have been committed abroad, two conditions must be fulfilled. First, the wrong must be of such a character that it would have been actionable if committed in England.

……….Secondly, the act must have been justifiable by the law of the place where it was done.”

These words have been taken to mean that in every action brought in England upon a foreign tort the plaintiffs must prove that the defendant offended the law both lex loci delicti commissi and of England. Here substitute England with Nigeria.

The cases of Boys vs Chaplin (1971) A.C 356, 381-382 and Szlantnary-Stancho vs. Fink (1947) K.B. 1 (1946) 2 All E.R. 231 are illustrative. The latter case deals wit an alleged libel on one Czech national in England by another Czech national in course of official duty. The plaintiff who is a Czechoslovak citizen, was acting Minister in Cairo under the Czechoslovak Government from 1934 to 1944. The alleged libel is contained in a document dated November 17, 1944, signed by the defendant, with document attached, and sent to Military Office or the Chancellery of the President of the Czechoslovak Republic. The defendant, who is also a Czechoslovak citizen, who at the material time Public or General Prosecutor of Czechoslovak Military Court of Appeal, which was a court established in the United Kingdom under the Allied Force Act, 1940, the Czechoslovak Government being in England at that time as their ally. The English court assumed jurisdiction notwithstanding that the publication was made to Czechoslovak Government in exile whose Chancellery of the President is clearly a foreign country just as the Israeli Embassy in Nigeria is, and should be eligible for immunity and inviolability of residence. See also paragraph 250 of Gatley which states as follows-

“250. Publication abroad. An action will lie for a libel or slander published abroad if it is civilly actionable by the law of the country where it was affected. In some circumstances limitations on the defendant’s liability imposed by that law may be given effect to the English Courts.”

In the circumstance notwithstanding the fact that there was a publication abroad, the High Court of Lagos State is resoundingly endowed with competence to hear and determine the dispute. This is for the simple reason that the jurisdiction vested in High Court of Lagos State by virtue of section 10 of its Law includes the jurisdiction vested in Her Majesty High Court of Justice in England. I need not further delve into this point the same having been exhaustively discussed elsewhere in this judgment. See also the Supreme Court decision in Benson vs. Ashiru (supra) which has accepted the principle in Nigeria.

On the third category of persons to whom the defamatory document was published, learned senior counsel for respondent strenuously contended that to find action for libel there must be publication to a named person or easily identifiable person. He argued hat the words “aviation industry” does not identity any person or group of persons as it might encompass impliedly ranging from aircraft manufacturers or operator to airport workers as well as cabin crew and other ancillary services providers. Learned counsel referred to the cases of Nsirim vs. Nsirim (1990) 3 NWLR (Pt.138) 285, 298; Yahaya vs. Munchika (2000) 7 NWLR (Pt.664) 3000, 314 and Gatley on Libel and Slander 8th Edition paragraph 105. The lower court in its ruling states as follows in this regard –

“Publication cannot be to the world at large. The averment of publication to ALL OPERATORS IN THE NIGERIAN AVIATION” does not constitute a valid publication in law.

……. In case of a letter or other private communication, the name of each person to whom publication is claimed to have been made must be stated in the pleading or if his name is unknown he must be described in such a manner that discloses his identity if this is not implied with the plaintiff, in absence of special circumstances, will not be permitted at the trial to prove publication to such person. See Salaudeen vs. Mammana (2000) 14 NWLR (Pt.686) 63.

Learned trial judge thereafter proceeded to strike out plaintiffs’ suit on account that “there is no evidence of publication of the defamation”. In the circumstance can it be said that the order striking out the action was premature? Learned trial judge having prevented the same to progress to trial when evidence could have bee adduced. Clearly learned trial judge cannot strike out the case on account of want of evidence when the stage to adduce evidence had been aborted by him. I am strengthened in this view by the holding of the learned trial judge which runs thus –

“if this is not complied with the plaintiff, in the absence of special circumstances will not be permitted at the trial to prove publication to such person.”

Undoubtedly, the learned trial judge is approbating and reprobating. He stated in one breath that the appellant under special circumstances could adduce, at trial, evidence of publication to such person. But before trial and before the plaintiffs were given opportunity to show existence of special circumstance they were denied the same opportunity the learned trial judge claimed was available to them by striking out their claim.

Learned trial judge made heavy weather of the case of Salaudeen vs. Mammana (supra) 63, 85-6 on which she relied heavily. Incidentally Salami, JCA read the judgment which has apparently been quoted out of con. In that judgment it was state thus-

“The authority, however, is that in the case of a letter or other private communication the name of each person to whom publication is claimed to have been made must be stated in the pleadings or if his name be unknown he must be described in such a manner that disclosed his identity. If this is not complied with the plaintiffs in the absence of special circumstance, will not be permitted, at the trial, to prove publication to such person……These cases do not support the submission of the learned counsel for the appellant that failure to aver to the name of person or persons to whom a letter complained of amounts to want of cause of action which if sustained would have earned the plaintiff a mere striking out of his action. The authority merely debar him from leading evidence in respect of such persons whose name are not mentioned in the pleadings.”

It is the reduction of libelous matter to writing and its delivery to any person other than the person injured thereby that is publication. The appellants in paragraph 20 of the statement of claim referred to three classes of persons who received the publication in question. Mr. G. Golan is named, the respondent is not quarrelling with the identity of “staff and members of staff of defendant.” The additional publication to “all operators in Nigerian Aviation Industry will not form a good ground why the suit should be struck out. See Russel vs. Stubbs Limited (1913) 2 K.B. 200, 202 cited in the appellants’ brief of argument is a case where the plaintiffs, after the action was instituted, brought an application for discovery for the defendants to reveal the names of the unknown persons to whom they had made the publications. See also Braharm vs. Lord Hunting-field (1913) 2 KB 193. Similarly allegation of publication of a grossly libelous notice ….. among policy holders of plaintiffs company…….. “was considered sufficient in the case of British Legal and United Provident Assurance Company Ltd. vs. Baron Shelfiled & Ors. (1911) le R 69, 71. see also the case of Giwa vs. Ajayi (1993) 5 NWLR (Pt.274) 423, 433 cited in the appellants’ brief.

The court held as follows –

“In order to succeed, the plaintiffs must prove the fact of publication. In other words the plaintiffs is under a burden to prove that the defamatory matter was published to a third party. And the law required that the third party must not only be named but must also be clearly identifiable and identified.”

The learned trial judge should have been satisfied that the publication of the respondent’s letter was made to a named person Mr. G. Golan who is identifiable and identified as well as to unknown person whose identity could or would have been ascertained at the trial of the matter as was determined in the cases cited above including Salaudeen vs. Mammana relied upon by the trial judge. It is an authority to prevent the appellant from leading evidence on the unidentified or unidentifiable persons pleaded and for striking out the suit.

To my mind, the whole exercise has been in futility. Exhibit A 1 to the affidavit in support of the preliminary objection carried a number of persons to whom the defamatory document was addressed which list includes Nigeria Ambassador to Israel. The list of the endorsee reads as follows –

“CC. His Excellency Ignatius Oliseemeka – Ambassador of Nigeria in Israel. Mr. Zri Mazel- Deputy Director General, Ministry of Foreign Affairs, Mr. N. Zeidinam – Chief Security Officer I. A.I., Mr. M. Broder V.P.I. and Mr. J. Weiss-General Counsel I.A.I.”

It is the case for the respondent that the Lagos State High Court has no jurisdiction because it was published to the Israeli Ambassador in the Israeli Embassy, a foreign land. By the same token publication to the Nigerian Ambassador in Israel is a publication not in Israel but in Nigeria. I am quite aware that the Ambassador of Nigeria in Israel was not pleaded. But the appellants are entitled to amend their pleadings at any stage before judgment. The amendment will squarely bring their case within the jurisdiction of the trial court. It is therefore in the interest of justice not to strike out the case on the point strenuously and held as argued by the learned trial judge.

In view of the order I am about to make, it will be futile to delve into the appellants issue on demurrer. It seems to me academic. I agree dcmurrer is dead but it is still hunting us from its grave.

The appeal succeeds and it is allowed. The decision of the learned trial judge is set aside. The matter is remitted to the Chief Judge of Lagos State to reassign to another judge other than Oyefesobi, J., for trial on the merit.

The appellants are entitled to the costs of this appeal which is assessed at N= 10,000.00 against the respondent and in favour of the appellants.

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Other Citations: (2006)LCN/2100(CA)