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.