….Strikes out suit seeking to stop paper publication
An Abuja Chief Magistrate court has struck out a suit seeking to stop Folio Communications Plc from publishing Daily Times of Nigeria. This is the fifth time different courts have delivered similar rulings, thereby affirming the paper’s ownership by the Anosike brothers.
In the latest ruling which was obtained on Monday His Worship R. J Egbe of Magistrate Court 13 Wuse Zone 2 Abuja said he was aware that there was an ownership dispute existing between Folio Communications Plc and Sen. Ikechukwu Obiora on Daily Times of Nigeria as well as Consent Judgement entered between the two parties following resolution of the matter by stakeholders in 2006 which from records has not been vacated by any court of competent jurisdiction and therefore cannot grant the plaintiff’s prayers to stop the publication of Daily Times.
“However, I cannot feign ignorance or pretend that there is more to it. The totality of the evidence before me by way of affidavit evidence and exhibits particularly, exhibit 6, seems to me that there is an ownership dispute of the plaintiff between the defendants and the deponent to the counter- affidavit. The tort of passing – off can only be derived from the right of ownership.
Therefore, it is my view that it will be meaningless to deal with the right of passing off without the right of ownership. It will amount to placing something on nothing and a sheer waste of time and energy which this Court is not ready to embark on. The case is therefore struck out
Earlier, the Magistrate had also thrown out counter affidavit tendered by plaintiffs following argument by counsel to the Anosike’s that having heard addresses by both side, he should not have allowed the tendering of more documents and affidavits.
His worship therefore struck it out saying “I agreed with the defendants’ counsel, after parties had argued their cases, I could not have asked parties to adduce further or additional evidence to substantiate or support their case at the expenses of any of parties. That was not my intention.
My intention was strictly to be addressed on how a judgment of a competent Court could lapse by operation of law and or effluxion of time without more. Therefore, the plaintiff’s further counter affidavit and all the exhibits attached thereto is struck out.
The defendants through their Counsel filed a Notice of Preliminary objection dated and filed on the 22nd of February, 2018 against the suit of the plaintiff on eight (8) grounds as in the face of the preliminary objection. The preliminary objection is brought pursuant to section 251(1)(e) and (3) of the Constitution of the Federal Republic of Nigeria as amended.
In support of the notice of preliminary objection is 28 paragraph affidavit deposed to by Israel Dinne including Financial Bid Opening for Daily Times of Nigeria Plc which contains four Official Receipts of Bureau of Public Enterprises;
Share Sales/Purchase Agreement between Bureau of Public Enterprises and Folio Communication Ltd for the purchase of 233,745,640 Ordinary Shares of Fifty Kobo each in the issued and Paid up Capital of the Daily Times of Nigeria PLC dated the 21/6/2004; Letter of Divestment of interest in DSV Ltd dated 2005;
Settlement Agreement between Folio Communications Ltd and Chief Anthony Idigbe ,SAN and the Daily Times of Nigeria PLC and DSV Ltd and Hallmark Bank PLC and Bureau of Public Enterprises and Nigeria Stock Exchange and Nduka Obaigbena in addition to exhibit 6 which is a consent Judgment of the Federal High Court Lagos delivered on the 24/4/2006.
Also filed with the Notice of preliminary objection was a written address which the defendants’ Counsel adopted along with the notice on the 13/4/18 where the defendants Counsel formulated a lone issue for determination by this court, to wit: Whether the Magistrate Court has jurisdiction to entertain this suit.
In arguing his issue, the defendants’ counsel submitted that the Court lacks the jurisdiction as section 251(1)(e) and (3) of the 1999 Constitution of the Federal Republic of Nigeria reserves it for Federal High Court.
He argued that jurisdiction is the foundation upon which a Court of law is vested with authority to adjudicate on matters and referred the Court to a plethora of cases, including Madukolu V Nkemdilim (1962 )1 All NLR 587.
On the other hand, Counsel to Ikechukwu Obiorah argued that it is the claim of the plaintiff that determines the jurisdiction of the Court and neither the defendant’ statement of defence nor the defendant’s misrepresentation of the plaintiff’s case and referred the Court to the cases of Aremo V. Adekanye (2004) 13 NWLR (pt. 8910)572 and Abubakar v. Usman (2009) 6 NWLR (pt. 1136)68 amongst others.
He submitted that the Court has the requisite jurisdiction to entertain the suit as same is found on the tort of passing – off under section 13 (a) of the District Court Act. The plaintiff counsel urged the court to have recourse only to the plaintiff’s pleas and dismiss the preliminary objection.
But in his ruling the Magistrate said that there was something curious about the presentation and claims of the plaintiff which he noted was rather self contradictory.
He said, “However, while reading through the processes, paragraph 5 of the plaintiff’s counter – affidavit aroused the curiosity of the Court. Para. 5. reads, (quoting statement of plaintiff) “I am aware that Folio Communication ltd could not meet terms of a consent judgment entered at one point in the past and same lapsed by operation of law and effluxion of time.”
The Magistrate therefore stated that the quoted paragraph indicates clearly, an acceptance by Ikechukwu Obiorah that there was an existing consent judgement as claimed by the Anosike’s, adding that “This paragraph necessitated the Court’s directive to be addressed.
Both parties filed and adopted the addresses on the 14/5/18. The plaintiff counsel however files a further counter affidavit and Exhibits attached hereto which the defendant counsel objected to, ruling also that there was no need in the first place to allow plaintiff file further affidavit.