His Excellency Dr. Chinwoke Mbadinuju V. Independent Communications Network Ltd. & Ors (2007)
LawGlobal-Hub Lead Judgment Report
RHODES-VIVOUR, J.C.A.
In the High Court of the Federal Capital Territory, holden at Abuja, the appellant (as the plaintiff) claimed from the respondents (as the defendants) jointly and severally as follows:
“(i) the sum of N5,000,000,000.00 (Five billion Naira) being damages for libel published by the defendants of and concerning the plaintiff in pages 20 – 25 of THE NEWS VOL. 19 No. 25 of 23rd December, 2002 under the heading “Governors Trying Moments” and Mbadinuju Engineered Igwes Death” which is widely read throughout Nigeria including Abuja within the jurisdiction of this court.
(ii) an injunction restraining the defendants and each of them whether or by their agents or servants from further publication, writing, printing, circulating or causing to be written, printed, circulated or otherwise publishing of the said or further or any libel against the plaintiff.”
On being served the originating processes, the 5th defendant filed a notice of preliminary objection. The grounds of the objection are as follows:
“1. This Honourable Court lacks jurisdiction to entertain this suit on the ground that the cause of action is libel an item outside the legislative competence of the National Assembly.
- Both the plaintiff and the 5th defendant at all times material reside in Anambra State while the 1st to 4th defendants reside in Ikeja, Lagos State all outside the territorial jurisdiction of this court, and all the issues relates to Anambra State.
- The statement of claim does not disclose any reasonable cause of action.”
At the hearing, grounds 1 and 3 were withdrawn and accordingly struck out. Oniyangi, J. heard arguments on ground 2 and in a considered ruling delivered on 01/12/03 declined jurisdiction and struck out the suit. The concluding part of the ruling reads:
“…For the foregoing reasons, I accordingly decline jurisdiction and strike out the suit. While holden that the Anambra State High Court would be more appropriate for the trial of the suit rather than High Court of the FCT, Abuja. Having regard to circumstances of this case as contained in the statement of claim.”
This ruling did not go down well with the plaintiff, and so on 15/12/03 he filed a notice of appeal containing five grounds and on 22/05/06 this court granted the plaintiff, now the appellant, leave to file an additional ground of appeal. The additional ground of appeal filed with the application was deemed properly filed also on 22/05/06.
In accordance with Order 6 rule 2 the appellant filed his brief of argument on 19/09/05. The respondents did not file any brief of argument.
At the hearing of the appeal on 06/11/06 the respondents were absent and unrepresented. Learned counsel for the appellant Mr. T. Onwugbufor, SAN adopted his brief and urged us to set aside ruling of the trial court and remit the suit back to the Abuja High Court for trial. The appellant identified three issues for the determination of this appeal. These issues run as follows:
“1. Whether the learned trial Judge was right to entertain the 5th defendant/respondent’s preliminary objection when the 5th respondent/applicant breached the applicable conditions for its use and in the process denied the plaintiff/appellant the right of fair hearing in the determination of the application.
- Whether the learned trial Judge, having held that he has jurisdiction to entertain the suit, was right in declining jurisdiction, striking out the suit and transferring it to Anambra State on the ground of forum convenience.
- Whether the learned trial Judge was right in transferring the suit to Anambra State on the basis of forum convenience when that relief was not asked for by the applicant.”
I adopt the issues identified by the appellant for the determination of the appeal. Learned counsel observed that the notice of preliminary objection is incompetent and ought to be struck out because it contains facts, which are not permitted in a notice of preliminary objection. Reliance was placed on Odediran v. NPA (2004) 7 NWLR (Pt. 872) p. 230; A.-G., Federation v. ANPP (2003) 18 NWLR (Pt. 851) p. 182. He contended that his right to fair hearing was breached because he had no opportunity to contradict the facts stated in the grounds of the preliminary objection. Concluding his argument by submitting that the ruling on the preliminary objection must be set aside not only on the ground of lack of fair hearing but also because it breached the fundamental principles or requirement that the issue of jurisdiction must be determined from the statement of claim. Alternatively, he submitted that the preliminary objection contained facts contrary to established principles that no facts should be averred in a notice of preliminary objection.
Learned counsel argument on issue 1 is very interesting. His argument falls within the warm embrace of the position of the law as stated by Hon. Justice Niki Tobi, JSC in A.-G., and Federation v. ANPP (2003) 18 NWLR (Pt. 851) 182 at p. 207. His Lordship said:
“Preliminary objection, by its very nature, deals strictly with law and there is no need for a supporting affidavit. In a preliminary objection, the applicant deal with law and the ground is that the court process has not complied with the enabling law or rules of court and therefore should be struck out…” However, if a preliminary objection leaves the exclusive domain of law and flirts with the facts of the case, then the burden rests on the applicant to justify the objection by adducing facts in an affidavit.”
The ground on which the learned trial Judge heard arguments on the preliminary objection reads thus:
“Both the plaintiff and the 5th defendant at all times material reside in Anambra State while the 1st to 4th defendants reside in Ikeja, Lagos State all outside the territorial jurisdiction of this court, and all the issues relate to Anambra State.
This ground is clearly on facts. The applicant has averred to facts. The position of the law is that the applicant (i.e. the 5th respondent) ought to have adduced such facts in an affidavit so that the appellant would have the opportunity of controverting the facts. According to the appellant he was denied the opportunity of denying the following:
(a) that both appellant and 5th respondent reside in Anambra State
(b) that the 1st to 4th respondents reside in Lagos
(c) that all the issues relate to Anambra State.
The Supreme Court stated the position of waiver clearly in Ariori v. Elemo (1983) 1 SCNLR p. 1 at p. 13. Two passages in the leading judgment of Eso, JSC are very instructive on the concept of waiver. It reads:
“The concept of waiver must be one that presupposes that the person who is to enjoy a benefit or who has the choice of two benefits is fully aware of his right to benefit or benefits, but he either neglects to exercise his right to the benefit, or where he has a choice of two, he decides to take one but not both … The exercise has to be a voluntary act. There is little doubt that, a man who is not under any legal disability should be the best Judge of his own interest. If therefore, having full knowledge of the rights, interests, profits or benefits conferred upon or accruing to him by and under the law, but he intentionally decides to give up all these, or some of them, he cannot be heard to complain afterwards that he has not been permitted the exercise of his rights, or that he has suffered by his not having exercised his rights. He should be held to have waived those rights. He is, to put it in another way, estopped from raising the issue.”
His Lordship then went on to explain the extent a right conferred by statute could be waived as follows:
“The next enquiry is the extent to which a person could waive rights conferred upon him by law. When a right is conferred solely for the benefit of an individual there should be no problem as to the extent to which he could waive such right. The right is for his benefit. He is sui juris. He is under no legal disability. He should be able to forgo the right or in other words waive it either completely or partially, depending on his free choice. The extent to which he has forgone his right would be a matter of fact and each case will depend on its peculiar facts … A beneficiary under statute should have full competence to waive those rights once the rights are solely for his benefit. The only exception I can think of is where the statute itself forbids waiver of its statutory provisions.”
See also Noibi V. Fikolati (1987) 1 NWLR (Pt. 52) p. 619; Adegoke Motors Ltd. v. Adesanya (1989) 5 SC p. 113; (1989) 3 NWLR (Pt. 109) 250; Menekaya v. Menakaya (2001) 9 – 10 SC p. 1; (2001) 16 NWLR (Pt. 738) 203; Shanu v. Afribank (Nig.) Plc (2002) 6 SC (Pt. 11) p. 135; (2002) 17 NWLR (Pt. 795) 185.
My Lords the issue that the sole ground in the preliminary objection is on facts and not on law never arose in the trial court. Indeed Mr. T. Onwugbufor, SAN argument on the preliminary objection was that any court where the alleged act complained of as published is competent to entertain the suit and that any other details regarding the act of reading of the said alleged publication is a question which would be determined through evidence and not at this stage.
Learned counsel was fully aware of his right to insist that he be given the opportunity to file an affidavit to controvert the facts in the sole ground in the preliminary objection. Learned counsel apparently intentionally abandoned his right. Surely he cannot be heard on appeal that he was denied fair hearing. He is estopped from raising the issue here. Having thus waived his rights to insist or bring to the notice of the trial Judge the urgent need to file an affidavit to contest facts, his omission creates an estoppel against him, as he has acquiesced to the hearing of the preliminary objection without affidavits. I find no merit in issue No. 1.
Issue Nos. 2 and 3 would be taken together.
Learned counsel for the appellant observed that the learned trial Judge was in grave error to decline jurisdiction after holding that he has jurisdiction to hear the case. He further observed that the learned trial Judge after striking out the suit was incompetent to make a consequential order transferring the suit to Anambra State on the ground of forum convenience, contending that the court becomes functus officio and has no jurisdiction to make a further order after striking out the case. Reference as made to Ikeakwu v. Nwamkpa (1967) NMLR p. 224; Olowokere v. African Newspapers (1993) 5 NWLR (Pt. 295) p. 583.
Concluding he submitted that the learned trial Judge was wrong to transfer the case to Anambra State on the ground of forum convenience. He submitted that a court has no jurisdiction to grant a relief not asked for. Reference was made to Oduwole v. Aina (2001) 17 NWLR (Pt. 741) p. 1; Ekpenyong v. Nyong (1975) 2 SC p. 71.
Extracts from the ruling of Oniyangi, J. explaining His Lordship’s reasoning is as follows:
“It is crystal clear that High Court of a State where the alleged libelous publication is published has jurisdiction to entertain any action emanating from this act. For the purpose of this case, one may say that Abuja High Court among others has jurisdiction to entertain this suit, and I so hold.”
The tort of libel is committed where the publication is read by a third party and not where it was written or authored or where the act complained of took place. See Ezeugwa v. Adimorah (1993) 1 NWLR (Pt. 271) p. 620; Nas v. Adesanya (2003) 2 NWLR (Pt. 803) p.97.
Paragraph 2 of the statement of claim states that:
“The 1st defendant is the printer and publisher of the weekly magazine known as ‘THE NEWS’, which has a nationwide circulation throughout Nigeria including Abuja, the Federal Capital Territory.”
This pleading means in effect that ‘THE NEWS’ magazine is read throughout Nigeria. The learned trial Judge was thus correct to say:
“… For the purpose of this case, one may say that Abuja High Court among others has jurisdiction to entertain this suit …”
His Lordship was correct because the tort of libel is committed where the publication is read. After so holding the learned trial Judge went on to say that:
“The combined effect of this in my candid view having regard to the location of the majority of the parties and the place where the act emanated which will necessarily suggest which venue would ordinarily be more convenient and economical for the purpose of trial, I hold the view that this court should decline jurisdiction and for those courts (sic) i.e. Anambra State to try the case and I accordingly so hold …”
My Lords, it is entirely at the discretion of the trial Judge to decide which is the appropriate court or forum convenience, and the test is where the interest of justice is best served. In exercising his discretion the trial Judge is expected to choose a venue in which the case can be tried more suitably for the interest of all the parties and for the ends of justice. Two principles must be borne in mind (a) the principle of effectiveness and (b) the principle of submission. See Olayiwola v. Nwadike (1967) NMLR p. 15. The court will look for the venue where the action has real connection in terms of convenience or expense, availability of witnesses, and place where the parties reside or carry on business. The statement of claim is replete with averments, which show the action to have real connection with Anambra State. The Judge taking into consideration these facts exercised his discretion by stating that the High Court in Anambra State would be appropriate for the trial.
The Court of Appeal is always loath to interfere with the way a trial Judge exercises his discretion but will be quick to interfere if:
- the discretion is known to have been wrongly exercised.
- the exercise was tainted with some illegality or substantial in regularity.
- it is in the interest of justice to do so.
See Salu v. Egeibon (1994) 6 NWLR (Pt. 348) p. 23; University of Lagos v. Aigoro (1985) 1 NWLR (Pt. 1) p. 143; Nzeribe v. Dave Engineering Co. Ltd. (1994) 8 NWLR (Pt. 361) p. 124; Anyah v. A.N.N. Ltd. (1992) 6 NWLR (Pt. 247) p. 319.None of the above can be resolved in favour of the appellant. Furthermore appellate courts do not interfere with the way a trial court exercises its discretion; even if of the view that it might have exercised the discretion differently if the discretion were its own. In my respectful view I see no reason why this court should disturb the finding by the learned trial Judge that the Anambra State High Court is the appropriate forum for the trial of the appellant’s case. I have examined the ruling repeatedly and I fail to see where the learned trial Judge transferred the case to Anambra State. His Lordships never so ordered. The concluding fact of the ruling reads:
“For the foregoing reasons, I accordingly decline jurisdiction and strike out the suit. While holding that the Anambra State High Court would be more appropriate for the trial of the suit rather than High Court of the FCT, Abuja. Having regard to circumstances of this case as contained in the statement of claim.”
It is so clear from the above and the ruling on pages 56 – 58 of the record of appeal that the learned trial Judge declined jurisdiction and struck out the suit. His reason being that the action would be better tried in the High Court in Anambra State. His Lordship never transferred the case to Anambra State. He only said that the Anambra State High Court would be more appropriate for the trial of the suit rather than the High Court of the Federal Capital Territory, Abuja.
This does not amount to the learned trial Judge granting a relief not asked for.
For the foregoing reasons I would dismiss the appeal and affirm the decision of the trial court.
Other Citations: (2007)LCN/2188(CA)
