By Ameh Ejekwonyilo
An Enugu State High Court has dismissed a preliminary objection in a libel suit instituted by one Dr. Ejike Arum against Daily Times of Nigeria Plc and Folio Communications Limited.
In the suit no: E/430/2017, the defendants, Daily Times and Folio Communications Limited, had in their preliminary objection predicated on three grounds, challenged the court’s jurisdiction to entertain the suit.
They had argued before the presiding judge, Justice C. O. Ajah (PhD), that they already stand prejudiced by the institution of the matter against them, adding that more hardship would be meted out against them if the suit was allowed to continue and that the “suit was brought to the annoyance, harassment and embarrassment of the Defendants on record which have already started incurring pecuniary losses by the mere fact that they have to defend the Suit which they believed was broughtmala fide against them.
“There is no cause of action made out by the plaintiff against either of the Defendants on record. The Defendants on record are neither resident nor carrying on business in Enugu State. By the Rules of this Honourable Court, the High Court of Enugu State is a forum non convenient to institute the present Suit.”
“The deponent further deposed that the Defendants on record are resident in and carry on business in 3/4 Imam Augusto close off Olosa Street, Victoria Island, Lagos State outside the jurisdiction of this Court and that the alleged publication by the 1st Defendant on the plaintiff was made at the above address in Lagos State a place outside the jurisdiction of this Court and that by virtue of the Rules of the High Court of Enugu State this Court lacks jurisdiction and the court should order that the Suit to be struck out for want of jurisdiction (see paragraphs 3 to 7 of the supporting affidavit).
In their written address in support of the preliminary objection, the counsel for the defendants,UcheAmulu, raised three issues for determination thus:
Whether the plaintiff has disclosed reasonable cause of action either of the defendants on record, whether having regard to the rules of this honourable court, the High Court of Enugu State is a forum convenient for the institution and maintenance of this Suit, Whether, this Honourable Court has jurisdiction to entertain this Suit as presently constituted.”
In his response to the application of the defendants, the plaintiff deposed to and filed a 10 paragraph counter affidavit in which he stated that the defendants admitted in paragraphs 4 and 6 of their supporting affidavit that they made the publication which is the cause of action in this Suit.
“The plaintiff further deposed that it is not in dispute that he saw and read the libelous words in Enugu and so the cause of action arose in Enugu and that the 1st defendant had an office at No. 33 Obiagu Road, Enugu with a sales representative by name Chidi and the publications of the 1st defendant are contained and read online on its website https:/dailytimes.ng and read from every part of the country Enugu inclusive.”
In his written address the lawyer to the plaintiff, IfeanyiOkumah, submitted that the application of the defendant amounted to demurrer since they did not file their statement of defence wherein they ought to raise any legal objections, and that Order 22 Rule 2 & (2) of the Enugu State High Court Civil Procedure has done away with demurrer.
Delivering his ruling on the application, Justice Ajah held that the plaintiff’s statement of claim revealed “reasonable cause of action”, which entitled him to the right to bring the suit with a view to seek judicial remedy for the wrong allegedly done against.”
The court declared that it had jurisdiction to hear and determine the suit.
“I therefore hold that the statement of claim of the plaintiff has disclosed reasonable cause of action entitling the plaintiff the right of action to bring this Suit to seek judicial remedy for the wrong allegedly done against him and this court has jurisdiction to determine the claim of the plaintiff because the subject matter of the Suit is within the jurisdiction of this Court.
“On the second issue which is whether the court has jurisdiction over the suit considering the nature of cause of action as relates to its point of origin and point of impact. The trite law in action for libel which is a form of defamation is that the court having jurisdiction in the place of production and the court having jurisdiction in the place of publication all have jurisdiction in the case.
“In the instant case the offending publication was produced in Lagos but published to the whole world through the internet (see paragraph 7 of the counter affidavit and paragraph 8 (vii) and (iv) of the further affidavit). In paragraph 6 of the counter affidavit of plaintiff and paragraphs 6 and 7 of the plaintiff’s statement of claim, the plaintiff, friends and colleagues in Enugu and elsewhere read the publication in internet in Enugu and elsewhere. That means that both Lagos State High Court which have jurisdiction over the place of production and the Enugu State High Court which have jurisdiction over the place it was published among other places have jurisdiction over the Suit. In libel cases involving wide circulation and publication, jurisdiction is globally and not limited to the place of production of the news.
““”In the instant case both Lagos State High Court and Enugu State High Court have concurrent jurisdictions and it is for the plaintiff to choose among the two where to institute his Suit. “The place where the defendant carries on his business”under Order 2 Rule 4 (1) also includes the places where the defendant publishes the news it disseminates. Since according to the deponent of the supporting affidavit of the defendants“the 1st defendant is a media outfit, with the primary business of publishing and disseminating information and news items …. And with a duty to honestly publish her news exactly as she becomes seized of them”, the Defendants do not expect that the news it posted in its website to be broadcast to whole world will be assessed only by people in Lagos. The moment the news is posted on the internet to be assessed by the whole world, at that point the place of carrying on business is no longer restricted to Lagos State but to every place where the new is published or assessed, and in this case, Enugu State. In the Australian case of DOW JONES AND COMPANY INC VS GUTNICK (2002) HCA 56; 210CLR 575; 194 ALR 433; 77 ALJR 255 (10 December, 2002) the High Court of Australia, held that by posting information on a website, the publisher makes the content available to anyone, anywhere, having access to the web. The court stated that “defamation is to be located at the place where the damage to reputation occurs….and it is the damage to reputation which is the principal focus of defamation. In the case of material on World Wide Web, it is not available in comprehensible form until it is downloaded onto the computer of a person who has used web browser to pull the materials from the web server. It is where that person downloads the material that the damage to reputation may be done…that will be the place the tort of defamation is committed”. Similarly in the U.K Case of LENNOX LEWIS & ORS VS DON KING( decided by the UK court of Appeal) it was held that the UK court has jurisdiction over the defamatory publication in the internet by a NewYork based newspaper outfit because only the English publication was important since the publication was downloaded in England.Though I am not bound by the above two decisions being foreign cases but they can be useful in this type of case especially as the same internet has reduced the whole world into one global village. Both Australia and U.K. operate the commom law system as Nigeria.
“The law is that where two High Courts have equal jurisdiction, a party or a complainant have the freedom to choose which Court to go. See UZOCHUKWU vs. EZEONU II(1991) 6 NWLR (Pt. 200) 708 at 751 (Per Nasir JCA as he then was). In the instant case, the plaintiff haschosen Enugu State High Court and he has the right to do so. The situation is likened to a person who breeds dangerous animals in his farm in Lagos State. If any of the animals escapes from his farm in Lagos State and doses harm to some body in Enugu State, would the breeder insist that the victim must come to Lagos State to pursue his redress. That is impossible. Order 2 of the High Court (Civil Procedure) Rules 2006 of Enugu State should be interpreted expansively in matters of this nature. I therefore hold that this court has jurisdiction to hear and determine this suit as presently constituted.
In addition, I also hold that this Suit is properly constituted and competent before this court.
“On the issue of demurrer raised by the Plaintiff/Respondent’s counsel, the trite law is that a challenge to jurisdiction is not a demurrer. The defendant does not therefore need to plead first in order to raise the issue of jurisdiction as it can be raised at any time even on appeal. See ARJAY LTD VS. AIRLINE MANAGEMENT SUPPORT LTD (2003) 7 NWLR (Pt. 820) 597 AT 602 (Per S.U. Onu JSC, as he then was).
“In demurrer proceedings, the defendants admits all the facts pleaded by the plaintiff but still insists that in spite of the admission, the Suit does not disclose any cause of action. The issue of jurisdiction is much more than that, it goes to the root of the matter and where the court lacks jurisdiction, the proper order is striking out. See NDIC VS. CBN (2002) 7 NWLR (Pt. 766) 272 at 296-297 (Per Uwaifo, JSC as he then was).
“In the instant case, the notice of preliminary objection predicated on jurisdiction is not a demurrer proceeding. However, since I have resolved that this court has jurisdiction to hear this Suit, the issue of demurrer or no demurrer is merely academic and has no relevance again in the resolution of this application.
“On the whole I hold that all the issues raised of the applicants are resolved in favour of the Plaintiff/Respondent and I hold that the Suit has disclosed reasonable cause of action and that this court has jurisdiction to hear the Suit of the plaintiff,” Justice Ajah said.