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.

2. 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.
3. 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At the hearing, grounds 1 and 3 were withdrawn and accordingly struck out.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.

2. 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.
3. 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: