Global Excellence Communications Limited & Ors V. Mr. Donald Duke (2007)
LAWGLOBAL HUB Lead Judgment Report
S. N. ONNOGHEN, J.S.C
This is an appeal against the judgment of the Court of Appeal, holden at Calabar in appeal No. CA/C/06/05 delivered on 2nd May, 2006, in which it allowed the appeal of the present respondent against the ruling of the High Court of Cross River State holden at Calabar in suit No. HC/261/2004 delivered on the 8th day of November, 2004. On the 23rd day or July, 2004, the present respondent,the Governor of Cross River State as plaintiff instituted an action in the trial court against the appellants, as defendants, claiming the following reliefs:-
“1. The sum of N5 billion (five billion naira) being damages for libel published of and concerning the plaintiff by The defendants in The Global Excellence Magazine of Tuesday May 11-May 17, 2004 and Tuesday May 25-May 30, 2004.
- Exemplary or punitive damages in the Sum of N10 billion (ten billion naira).”
Upon service of the writ on them, the appellants caused a conditional appearance to be entered on their behalf by learned counsel who proceeded further to file a notice of preliminary objection on the 3rd day of September, 2004, challenging the jurisdiction of the court to entertain the suit as constituted.
The grounds on which the preliminary objection is based are stated as follows:-
“1. The plaintiff cannot, by The virtue of The provisions of section 308 of the constitution of the Federal Republic of Nigeria, 1999, institute, maintain or continue with any proceedings, including the present suit, in any court of law, nor can any proceedings be instituted, maintained or continued against him in his personal capacity.
- The plaintiffs failed to comply with the mandatory required of section 97 of the Sheriffs and Civil Process Act.
- The annexure to the plaintiff’s statement of claimed Title ‘UNIVERSITAS PENNSYLVANIENSIS’ should be expunged from the court’s record, the same not being a document that the Honorable can use.
4.This suit disclose no reasonable course of action
- This suit vexatious and constitute a flagrant abuse of the process of this Honourable Court”
There is no affidavit in support of the notice of preliminary objection.
Upon the conclusion of arguments on the preliminary objection, the learned trial Judge held, inter alia, that
” ….. a serving Governor cannot sue or be sued in his personal capacity while still in that office.”
The plaintiff was not satisfied with that ruling and therefore appealed to the lower court which, by a majority decision, allowed the appeal resulting in the instant appeal to this court.
In the appellant’s brief of argument filed on 16/2/07 by Mba E. Ukweni, Esq., learned counsel for the appellants, the following issue has been identified for the determination of the appeal:-
“Whether, taking into consideration the decision of this court in Tinubu v. I.M.B Securities Plc (2001) 16 NWLR (Pt.740) 670, (2003) 8 NWLR (Pt. 740) 192 at 708 and 718 and that of the Court of Appeal in I.C.S. (Nig.) Ltd. v. Balton B. V (2003) 8 NWLR (Pt. 822) 223 at 235, the learned justices of the Court of Appeal were right in coming to the conclusion that a serving Governor of a State can sue or initiate proceedings for relief in his personal capacity while in office”
On the other hand, learned counsel for the respondent, Charles E. Duke, Esq., in the respondent’s brief filed on 29/3/07 also formulated a single issue to wit:-
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