ALHAJI LAI MOHAMMED v. CHIEF AFE BABALOLA, S.A.N (2011)

ALHAJI LAI MOHAMMED v. CHIEF AFE BABALOLA, S.A.N

(2011)LCN/4665(CA)

In The Court of Appeal of Nigeria

On Friday, the 1st day of July, 2011

CA/AE/48/2010

RATIO

JOINT LIABILITY: WHETHER AN AGENT WHO COMMITS A TORT ON BEHALF OF HIS PRINCIPAL IS A JOINT TORT FEASOR WITH HIS PRINCIPAL AND MAY BE LIABLE EITHER ALONE OR TOGETHER WITH HIS PRINCIPAL FOR HIS ACTION OR CONDUCT

The relation of agent and principal is one of the modes by which joint liability in tort arises. It is trite laws that, an agent who commits a tort on behalf of his principal and the principal are joint tort feasors, and may be sued jointly or severally. In other words, an agent who commits a tort on behalf of his principal is a joint tort feasor with his principal and may be liable either alone or together with his principal for his action or conduct. See PAN BROTHERS LTD. V LANDED PROPERTY LTD.& ANOR (1962) ALL N.L.R (Pt.1) P.22, MANAGEMENT ENTERPRISES LTD & ORS V JOHNSON OTUSANYA (1987) 4 S.C.N.J. P.110: IFEANYICHUKWU OSONDU CO. LTD. V SOLEH BONEH (NIG) LTD (2000) 3 N.W.L.R (Pt.656) P.322. PER HARUNA M. TSAMMANI, J.C.A.

JOINT TORT FEASORS: WHETHER A PLAINTIFF HAS THE LIBERTY TO DECIDE WHETHER TO SUE THE PRINCIPAL AND AGENT SEPARATELY OR BOTH OF THEM JOINTLY

Being joint tort feasors therefore, a plaintiff has the liberty to choose his victim. He may decide to either sue the principal and agent separately or both of them jointly. Although, the plaintiff has a duty to bring all interested parties in the matter into the fray, it does not mean that where he fails to so join, the action will be incompetent or that the jurisdiction of the Court will be ousted for non joinder. Whichever option a plaintiff decides to take, it will be for him to prove his case at the trial and for the defendant who has been sued to show at the trial that he acted within the scope of his duties and therefore not liable. See IZUOGU V EMUWA (1991) 4 N.W.L.R (Pt.183) P.78: IFEANYI GHUKWU V SOLEH BONEH (Supra): CROWN FLOUR MILLS LTD V OLOKUN (2008) 4 N.W.L.R (PT.1077) P.254: EZE V GEORGE (1993) 2 N.W.L.R (PT.273) P.86 at P.100 and YUSUF V ADEYEMI (2009) 15 N.W.L.R (PT.1165) P.616. PER HARUNA M. TSAMMANI, J.C.A.

NON-JOINDER OF PARTIES: WHETHER THE NON-JOINDER OF A PARTY CAN BE A BASIS FOR OUSTING THE JURISDICTION OF A COMPETENT COURT OF LAW

PLEADINGS: WHETHER IN DETERMINING WHETHER OR NOT A CAUSE OF ACTION EXISTS OR A REASONABLE CAUSE OF ACTION EXISTS, A TRIAL COURT MUST RESTRICT ITSELF TO AN EXAMINATION OF THE TOTALITY OF THE WRIT OF SUMMONS OR STATEMENT OF CLAIM

I find it pertinent to point out at this juncture that in deciding whether or not to strike out a Statement of Claim or suit due to non-disclosure of cause of action or reasonable cause of action, the court must restrict itself to the facts as pleaded in the Statement of Claim without resort to any extraneous facts. In determining whether or not a cause of action exists or a reasonable cause of action exists, a trial court is enjoined to restrict itself to an examination of the totality of the Writ of Summons or Statement of Claim, See P.V.C LTD V LAWAL (2005) 3 N.W.L.R (PT.911) P.121. PER HARUNA M. TSAMMANI, J.C.A.

SERVICE OF COURT PROCESS: ESSENCE OF SERVICE OF COURT PROCESS

Now, the essence of service, whether personal or substituted, of any originating process on a defendant in any suit or proceeding is to bring to the notice of such a defendant, the pendency, as well as the nature of the claim against him, so that he can take steps to defend or challenge the claim or suit if he desires to do so. It will not suffice that the defendant knows or is informed that a suit has been filed against him, as the fact that he is aware that he has been sued in court does not dispense with the need to serve him with an originating process. Service of any originating process is thus a basic or fundamental in the activation of the jurisdiction of the court against any defendant. Service of process is therefore essentially for the person to whom it is directed to have knowledge that he has a case to answer or claim to dispute before the court indicated in the process. It therefore means that before a court can have jurisdiction to adjudicate on a matter before it, it is a fundamental requirement that a defendant mentioned in the originating process filed before the court is duly served with the process, which may be a writ, originating summons or other originating process. Thus, failure to serve any originating process, where service of the process is required is fatal to the competence of the court to assume jurisdiction over the matter before it. Service of process therefore goes to the root of the jurisdiction of the court, so that a failure to comply with the requirement of service is capable of rendering the proceedings or any step taken in the matter null and void. A party who is required to be served with any originating process, but is not served, is entitled ex debito justitiae to have any order made against him in the absence of such service, set aside, See EIMSKIP LTD V EXQUISITE IND. LTD (2003) 4 N.W.L.R. (PT. 809) P.88; OTOBAIMENE V AKPOREHE (2004) 14 N.W.L.R (PT. 894) P.591: AYOGU V NNAMANI (2004) 15 N.W.L.R (PT.895) P.134 and GUINNESS (NIG) PLC V UFOT (2008) 2 N.W.L.R (PT.1070) P.52. PER HARUNA M. TSAMMANI, J.C.A.

SERVICE OF COURT PROCESS: POSITION OF THE LAW ON HOW SERVICE OF COURT’S PROCESSES MAY BE EFFECTED

Generally, under the rules of court, service of any writ of summons or other originating process is done in two ways; to wit: personal service or substituted means. Personal service is service on the defendant in person, while substituted service is service made or undertaken on a person other than the defendant or through some other means, which will in all probability ensure that the defendant has knowledge of the pending suit or matter against him. An application for substituted service in place of personal service (which is preferred) is usually an indication of some difficulty in effecting such personal service. A party seeking for an order of substituted service has the duty to show to the court before whom the order is sought that, the mode of service sought or proposed would probably after all practicable means of effecting personal service have proved abortive, can best bring the matter to the attention of the other party concerned. See S.P.D.C.N LTD V ESOWE (2008) 4 N.W.L.R (PT.1076) P.72: OKOYE V C.P.M.B LTD (2008) 15 N.W.L.R (PT.1110) P.335. PER HARUNA M. TSAMMANI, J.C.A.

INTERPRETATION OF STATUTE: INTERPRETATION OF ORDER 12 RULE 2 AND 5(A) OF THE ONDO STATE HIGH COURT (CIVIL PROCEDURE) RULES NO.18 OF 1987 APPLICABLE TO EKITI STATE AS IT REGARDS HOW SERVICE OF COURT’S PROCESS CAN BE EFFECTED

JUSTICES

UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria

CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria

HARUNA M. TSAMMANI Justice of The Court of Appeal of Nigeria

Between

ALHAJI LAI MOHAMMED Appellant(s)

AND

CHIEF AFE BABALOLA, S.A.N. Respondent(s)

HARUNA M. TSAMMANI, J.C.A. (Delivering the Leading Judgment): This is an interlocutory appeal against the decision of J.O Adeyeye, J, of the Ekiti State High Court, sitting at Ado-Ekiti. The Respondent as Plaintiff before the lower court had taken out a writ of summons against the Appellant (as Defendant) wherein he sought the following reliefs:
(a) A DECLARATION that the defendant’s publication in the Sunday Champion Newspaper Vol . 20, No. 45 of Sunday November 11, 2007 at Page 5 under the Caption “AC DECRIES ALLEGED INTERFERENCE WITH COURSES OF JUSTICE IN EKITI” a paper which circulates in Ado Ekiti and throughout Nigeria containing the following materials and Statements against the Plaintiff….is defamatory and libelous of the plaintiff.
(b) AN ORDER for publication of apology, retraction and rebuttal of the libelous materials in the 1st defendant’s “SUNDAY CHAMPION” Newspaper widely read National Newspapers for seven consecutive days.
(c) DAMAGES in the sum of N250, 000, 000, 000.00 (Two Hundred and Fifty Billion Naira).
(d) AN ORDER OF PERPETUAL INJUNCTION restraining the defendants or their cronies, group of people, association, or anyone howsoever called through “SUNDAY CHAMPION” newspaper or any newspapers/magazines owned by the 1st and 2nd defendants from further publishing or disseminating the libelous materials or similar ones against the plaintiff forthwith.
(e) Cost of this action.
The Appellant, who is the 3rd Defendant in the action before the lower court, did not file any Statement of Defence. He however, upon being served the originating processes filed a Notice of Preliminary Objection dated the 28/11/2007 asking the lower court to strike out or dismiss the suit in its entirety. The said Notice of Preliminary Objection reads thus:
“TAKE FURTHER NOTICE that the grounds upon which this objection is based are as follows:
1 (a) That the statement complained of was issued in Abuja, the Federal Capital Territory of the Federal Republic of Nigeria, outside the jurisdiction of this Honourable Court.
(b) The plaintiff, Chief Afe Babalola, OFR, CON, SAN, FCI Arb, LLD is not resident in Ekiti State but resident in Ibadan, Oyo State outside the jurisdiction of this Honourable Court.
(c) The 1st and 2nd Defendants, Champion Newspapers Limited and Mr. Luke Okoro is both resident in Lagos State outside the jurisdiction of this Honourable Court.
(d) The 3rd Defendant, Alhaji Lai Mohammed is resident in Lagos State outside the jurisdiction of this Honourable Court.
2. The suit discloses no reasonable cause of action against the Defendants.
PARTICULARS
(i) The Statement complained of did not make any reference to the plaintiff as his name was not in anyway mentioned in the publication.
(ii) The plaintiff is not the only Senior Advocate of Ekiti State origin in Nigeria.
(iii) The plaintiff is not the only prominent indigene of Ekiti State origin in Nigeria.
(iv) The plaintiff is not the only prominent indigene of Ekiti State close to former President of Nigeria.
(V) The plaintiff is not the only prominent indigene of Ekiti State with close association with Peoples’ Democratic Party (PDP).
(vi) The Statement complained of was issued by and on behalf of the Action Congress Party (AC) not sued or joined by the plaintiff as a party to these proceedings.
(vii) The 3rd Defendant was never served personally with the processes in this suit as the processes were simply dropped at the AC’s Party Secretariat in Abuja.
(viii) The Statement complained of shows that AC as a party is the complainant in the publication and not the 3rd Defendant.
(ix) The 3rd Defendant cannot be sued in the circumstances without joining AC the complainant in the publication as a party.
3. The substantive action is incompetent, speculative, vexatious and devoid of merit.
The objection was premised on the inherent jurisdiction of the trial court. At the hearing, both parties filed Written Addresses and in a considered ruling delivered on the 6th day of November, 2008, the learned trial judge held that the objection lacked merit and consequently dismissed same. The Appellant is aggrieved by the said decision and has now appealed to this court.
The original Notice of Appeal is dated and filed the 6th day of November, 2008. However, the Appellant filed an Amended Notice of Appeal on the 12/8/2010 vide the order of this Court on the 19/07/2010 consisting five Grounds of Appeal. The Grounds of Appeal without their particulars are as follows:
1. The Honourable Judge erred in law. His Lordship held that the High Court of Ado-Ekiti has jurisdiction in this matter.
2. The Honourable Judge erred in law by holding that the 3rd defendant/Appellant is a proper party to be sued in this matter.
3. The Honourable Judge erred in law by holding that the Defendant/Appellant was properly served the originating processes in this case.
4. The Honourable Judge erred in law by holding that after due consideration of all the processes filed in this case, the Plaintiff/Respondent is the person allegedly defamed by the 3rd Defendant/Appellant.
5. The Honourable Judge erred in law by holding that 3rd Defendant having failed to file affidavit in support of the Preliminary Objection, the Court cannot allow grounds 1(a), (b), (c), and (d) of the objection.
As demanded by the Rules of this Court, both parties filed briefs of Argument. The Appellant’s Brief of Argument is dated the 1st of December, 2010 but deemed filed the 12th of January, 2011 vide Motion on Notice filed the 03/12/2010. The Respondent’s Brief of Argument is dated and filed the 11th day of February, 2011. From the five Grounds of Appeal, the Appellant distilled four (4) issues for determination at pages 6 – 7 of the Appellant’s Brief of Argument. Those issues though couched in an unconventional manner posed the following questions:
1. Was the trial court right to have held that since the Appellant did not file any affidavit, he cannot allude to any fact in the court’s file when indeed those facts are contained in the originating processes before the court? (GROUND 5).
2. Was the trial court right to have held in its Ruling that the High Court of Ekiti State has jurisdiction over alleged Statements issued in Abuja?
(GROUND 1).
3. Was the trial court right to have held that the Appellant in his private capacity is a proper party to the suit filed and that there is reasonable cause of action against him? (GROUND 2).
4. Was the trial court right to have held that the Appellant was personally served with the originating processes? (GROUND 3).
It is apparent that no issue was formulated in respect of ground 4 of the Notice of Appeal. It is trite law that any ground of appeal upon which no issue is formulated is deemed abandoned and should be struck out. Accordingly, ground 4 of the Notice of Appeal is hereby struck out having been abandoned.
The Respondent also formulated four (4) issues for determination from the grounds of appeal as contained in the Amended Notice of Appeal, as follows:
a. Whether the trial court was right in baring the Appellant who did not file any affidavit in support of his objection from alluding to extraneous facts which he had a duty to bring to the attention of the court but failed to do so. (GROUND 5).
b. Whether the trial court was right to have assumed jurisdiction over a libelous matter which was published i.e. circulated and read in Ado-Ekiti, a place within its territorial jurisdiction. (GROUND 1).
c. Whether the trial court was right in holding that the Appellant is a proper party and that a reasonable cause of action was disclosed against him in respect of libelous material he authored and caused to be published. (GROUND 2).
d. Whether the trial court was right in holding that the Appellant was properly served with the originating processes in the suit leading to this appeal. (GROUND 3).
A cursory look at the issues formulated by the Appellant and the Respondent would reveal that they are similar in substance and scope. The difference lies in the manner they were couched. In that respect, I propose to adopt the issues formulated by the Appellant in the determination of this appeal.
The appeal was heard on the 5th day of May, 2011. Mrs. V.O.M Alonge who appeared for the Appellant adopted the Appellant’s Brief of Argument and urged us to allow the appeal and set aside the ruling of the trial court dated the 6th of November, 2008. Mr. Oluwasesan Dada Esq. of learned counsel for the Respondent equally adopted the Respondent’s Brief of Argument and urged us to dismiss the appeal and affirm the ruling of the lower court.
I now proceed to consider the issues arising for determination in this appeal. The issues will be considered serviatim; beginning with issue 1, which is:
Was the trial court right to have held that since the Appellant did not file any affidavit, he cannot allude to any fact in the Court’s file when indeed those facts are contained in the Originating Processes before the court?
Arguing this issue, learned counsel for the Appellant submitted that, the established principle of law regarding the appropriate documents which a trial court ought to look at whenever the jurisdiction of the court is challenged is the Statement of Claim or Originating Processes filed by the Plaintiff or Claimant as the case may be. Relying on the case of INAKOJU V ADELEKE (2007) 4 N.W.L.R (PT.1025) p.423 at PP.588 – 589 PARAS H – C, learned counsel contended that, the trial court erred in law when it held that the Appellant need file separate affidavit to depose to a fact particularly, where the facts are contained in the Statement of Claim before the trial court. That it is not in all cases that an affidavit is filed where a Preliminary Objection is raised in points of law. It is therefore the submission of learned counsel for the Appellant that, where the facts to be relied upon, are contained in the processes before the Court the Appellant is entitled to refer to it and the Court is bound to look at the processes as they form part of the Court’s Record. That the only facts to be considered for the purpose of determining the Court’s jurisdiction are those facts contained in the Statement of Claim on the issue of facts raised by the Appellant and it does not matter whether or not those facts were filed formally in an affidavit. The cases of OLOKUN V AIYELABEGUN (2004) 2 N.W.L.R (PT.858) P.505 at P.516 and AGBAHOMOVO V EDUYEGBE (1999) 3 N.W.L.R (PT.594) P.170 at P.182 were further cited in support. It is the further contention of learned counsel for the Appellants that, the trial court failed to consider the facts contained in the Statement of Claim as shown on pages 13- 14 of the Record. That if the trial court had considered those facts as contained in the Statement of Claim, it would have found that there are facts to suggest that the alleged defamatory statement complained of was issued and made in Abuja, that it was made by the Action Congress through its National Publicity Secretary while the Appellant was sued in his private capacity. He therefore submitted that, the trial court erred in law in applying the relevant principle of law when it failed to look at the Statement of Claim or even permit the Appellant to rely on the facts as contained in the Statement of Claim filed by the Respondent at the trial court. He drew our attention to the statement of the learned trial judge on page 82 of the Record of Appeal, lines 3 – 7 thereof, to further submit that, if the trial court had adverted its mind to the established principle of law that a trial court has the duty to look at the facts contained in the Statement of Claim for the purpose of determining its jurisdiction, and consider those facts already before it, its decision in determining the jurisdiction in this matter would have been otherwise. That, this has occasioned a miscarriage of justice to the Appellant. We were therefore urged to set aside the Ruling of the trial court on this ground.
In response, learned counsel for the Respondent submitted that, it is settled law that a Preliminary Objection which is not supported with an affidavit is an objection on point of law only and would not flirt with the facts of the case. He then relied on the decision of the Supreme Court in the case of A.G: FEDERATION V A.N.P.P (2003) 18 N.W.L.R (PT.851) P.182 at P.207 PARAS A – D. to contend that the Appellant’s Preliminary Objection, not being supported by an affidavit can only be regarded as one premised on point of law. That since the Appellant has limited his application to points of law alone, he must restrict himself to law and not flirt or meddle with the facts of the case, as he sought to do by grounds 1(a), (b), (c), (d) and particulars (i), (ii), (iii),(iv), (v), (vi), (vii) and (viii) of the objection. That the Appellant also having failed to file an affidavit in support of his Preliminary Objection is estopped from delving into the domain of facts through the back door of grounds and particulars of the objection. It is the submission of learned counsel that the learned trial judge was right and well within settled principles when he held as he did on pages 80 – 82 lines 24 -7 of the Record of Appeal.
It is also the submission of learned counsel for the Respondent that, the contention of learned counsel for the Appellant that the trial court ought to have looked at the facts in the Statement of Claim rather than discountenance grounds 1(a), (b), (c), and (d) of the objection is misconceived in view of the decision of the Supreme Court in A.G: FEDERATION V A.N.P.P (Supra). That the Respondent’s Statement of Claim filed before the lower court does not contain the facts stated in the said grounds 1(a), (b), (c), and (d). That if those facts ever existed, they only did so within the exclusive domain of the Appellant’s knowledge. That in any case, the Appellant did not indicate that he was relying on the facts contained in the Statement of Claim and the learned trial judge was therefore right in discountenancing the said paragraphs 1(a), (b), (c) and (d) of the grounds of the Preliminary Objection since they are facts, while the objection is on point of law only without any affidavit in support. We were therefore urged to resolve this issue in favour of the Respondent.
Now, a Preliminary Objection is generally an objection against the regularity of a court process i.e. a suit or motion. The primary objective of such an objection is to terminate the proceedings at the stage the objection is raised. In other words, the effect of a Preliminary Objection is to nullify the proceedings. See OKOI V IBIANG (2002) 10 N.W.L.R (pt. 776) P. 455; OROBU V ANEKWE (1997) 5 NWLR (pt. 506) P.618. A Preliminary Objection may or may not be supported by affidavit. It all depends on what is being objected to. Where the objection is based on law, an affidavit may not be necessary, but if it is based on the facts, an affidavit is mandatory, In other words, where the preliminary Objection deals strictly with issues of law, there is no need for any supporting affidavit, but only the grounds for the objection need be clearly stated. However, when the objection leaves the province of law and dwells on facts of the case, the party relying on such Preliminary Objection must support same by filing an affidavit. In that respect, where a preliminary Objection is raised on point of law, and relevant facts upon which the objection is based are before the Court, there is no need for additional affidavit evidence to be filed. It is only where there are conflicting assertions as to any fact relating to the objection, or where the facts are not before the Court; that such an objection ought to be supported by an affidavit which would ensure that all relevant materials are placed before the Court for a proper determination of the objection. See AMAH V NWANKWO (2007) 12 N.W.L.R (Pt.1049) P.552 at P.578: A.G: FEDERATION V A.N.P.P (2003) 18 N.W.L.R (Pt.851) P.182 at P. 207 PARAS A-D; and ODENIRAN V N.P.A (2004) 7 N.W.L.R (Pt.872) P.230.
My understanding of the law from the authorities cited above is that, a Preliminary Objection need not be supported by an affidavit so long as enough material is placed before the Court on which it can judiciously pronounce on the Preliminary Objection. I am fortified by the decision of Edozie, J.C.A (as he then was) in the case of OKOI V IBIANG (Supra) at PP. 469-470, where His Lordship cited and relied on the decision of Achike, J.C.A (as he then was) in the case of BELLO V N.B.N (1992) 6 N.W.L.R (Pt. 246) P.206 at P.219 where His Lordship held thus:
“Certainly, there is no hard and fast rule that a Preliminary Objection need be supported by an affidavit so long as enough material is placed before the trial court on which it can judiciously pronounce on the Preliminary Objection. Where the alleged offending writ of summons ex facie contains the relevant information against which an objection is being raised, it seems to me that the necessity to additionally rely on affidavit evidence is uncalled for. In the case in hand, it does not appear to me that what the respondent needed was an affidavit but particulars of the grounds of their objection to the motion for committal to enable them prepare for argument on the Preliminary Objection. ”
In the instant case, the Respondent as plaintiff at the lower court had copiously pleaded the particulars of his claim in the statement of claim. The Appellant then filed a Notice of Preliminary Objection wherein he gave notice that he would be contending as a preliminary issue that he would object to the hearing and determination of the suit on the ground that the trial court has no jurisdiction to entertain same. Where a Statement of Claim has been duly filed, as in the instant case, it is the contents and claim as pleaded in the Statement of Claim that determines the jurisdiction of the Court. In that respect, in determining whether or not the trial court has jurisdiction to entertain and determine the suit, or whether a reasonable cause of action is disclosed or whether the plaintiff has locus standi, it is the Statement of Claim that the Court looks into. BARCLAYS BANK V CENTRAL BANK (1976) 6 S.G. P.175: ADEYEMI & ORS V OPEYORI (1976) 9 & 10 S.C. P.31: NWOKORIE V OPARA (1999) 1 N.W.L.R (Pt. 587) P. 389: ALHAJI UMARU ABBA TUKUR V GOVERNMENT OF GONGOLA STATE (1989) 9 S.C.N.J. P.1: ZIZA V MAMMAN (2002) 5 N.W.L.R (Pt. 780) P.243 at PP.265 – 266 and MINISTER FOR WORKS & HOUSING V TOMAS (2001) 48 W.R.N. P.119. see also OMINA (NIG) LTD V DYKTRADE LTD (2007) 15 N.W.L.R (PT.1058) P.576. That being so, what the Appellant needed at the lower court was not an affidavit but particulars in support of the grounds for the objection. I think that is what the Appellant did in the instant case. The Appellant had hinged his Preliminary Objection on, inter alia, want of jurisdiction of the trial court and want of reasonable cause of action. I am of the view that paragraphs 1(a), (b), (c) and (d) (though wrongly termed grounds upon which the objection is based), qualify as the particulars supporting the objection based on jurisdiction. Similarly, paragraphs 2 (i) (ix) are the particulars supporting the objection on want of reasonable cause of action. I am therefore of the view and do hold that the learned trial judge was in error when he struck out paragraphs 1(a), (b), (c), and (d) of the grounds of Preliminary Objection. He was also in error when he failed to look at the Statement of Claim filed by the Respondent in order to determine whether or not it has jurisdiction to entertain and determine the matter. Issue one is therefore resolved in favour of the Appellant.
The second issue that arose for determination is:-
Was the trial court right to have held in its Ruling that the High Court of Ekiti State has jurisdiction over alleged statement issued in Abuja?
On this issue, it is the contention of learned counsel for the Appellant that, looking at the Statement of Claim at pages 13 – 14 of the Record of Appeal, it is clear that the words complained of were allegedly published in Abuja. That what is contained in the Champion Newspapers is the news or report of what was allegedly said in Abuja, and that in applying the law to this fact, the only Court that has jurisdiction to entertain the Suit is the High Court of Federal Capital Territory, Abuja. While recognizing the fact that the Respondent may have cause of action against the 1st and 2nd Defendants at the High Court of Ekiti State, based on the alleged content or words complained of in Champion Newspaper, learned counsel however contended that, the jurisdiction of the trial court cannot be invoked against the Appellant as the purported statement was allegedly made or issued to the Press at Abuja. That in any case, there are no facts to suggest that the Appellant authorised the 1st and 2nd Defendants at the trial court to publish the words complained of. Relying on the cases of DAIRO V U.B.N PLC (2007) 16 N.W.L.R (PT.1059) P.99 at P.156 and MIRCHANDANI V PINHEIRO (2001) 3 N.W.L.R (PT.701) P.557 at P.562, learned counsel submitted that the controlling authority in determining the jurisdiction of a court in libel cases is the “place of publication” i.e. where it was made known to a third party and not the place where the materials are read. See also OTOP V EKONG (2006) 9 N.W.L.R (Pt.986) P.533 at P.538.
It is further submitted by the Appellant that the “place of publication” determines the jurisdiction of the Court. That the place of publication of the alleged words as clearly shown on the Writ of Summons and Statement of Claim is Abuja. That it is therefore only the High Court of Federal Capital Territory, Abuja that has jurisdiction over the alleged words. The Appellant therefore submitted that, the trial court took a perverse decision, as it shut its eyes to the obvious fact contained in the Statement of Claim. We were then urged to set aside the Ruling on that ground.
It is the contention of the Respondent on this issue that, the issue of publication or making, and issuing the Statement to the Press in Abuja is a fact which ought to be in an affidavit in support of the application and which the Appellant failed to do, more so, as they are facts not contained in the Statement of Claim. That in any case, the Appellant after admitting that the Respondent may have cause of action in the High Court of Ekiti State, where the statement in the Champion Newspaper was read, he only sought to exonerate the Appellant on the basis that the statement was made or issued in Abuja, and that the authority of the Appellant to the Newspaper to publish was not shown. It was therefore submitted by the Appellant that, there is no place in the law of libel for authority to publish, and that, once it can be shown that the maker of the material started the chain of passing or publishing it to a third party who may publish same further.
It is the further submission of the Respondent that, it is trite law that where the plaintiff or the Defendant resides is immaterial in the consideration of the jurisdiction in libel cases. That what is important in the determination of jurisdiction of Court in libel cases is publication and the plaintiff is entitled to bring his action in the Court of any state where he can demonstrate the libelous material is circulated and read. The cases of DAIRO V U.B.N. PLC (2007) 16 N.W.L.R (PT.1059) P.99 at P.156 PARAS B – C: NSIRIM V NSIRIM (1990) 3 N.W.L.R (Pt.138) P.285 at P.297 PARA. H and OTOP V EKONG (2006) 9 NW.L.R (PT.986) P.533 at P.554 PARAS. E – F were cited to further submit that, the contention of the Appellant’s counsel that the trial court lacks jurisdiction over the matter because the alleged libelous material was made or issued in Abuja is misconceived and untenable in law, and therefore all the authorities cited by the Appellant are not only unhelpful to his case but support the Respondent’s case. That the Appellant had stated clearly in the Statement of Claim that the Sunday Champion Newspaper which contained the alleged libelous material admitted issued to it by the Appellant was read in and out of Ado-Ekiti. The Respondent therefore submitted that the clear meaning of paragraphs 25 and 26 of the Statement of Claim is that, the libel was published or made available to third parties who read it in several places including Ado-Ekiti. We were accordingly urged to resolve this issue in favour of the Respondent.
In order to succeed in an action for defamation, the plaintiff must prove that the libel has been published. An action for libel will therefore fail if publication of the defamatory matter is not proved by admissible evidence. Publication here means, the making known of the defamatory matter to some persons other than the person of whom the matter was written. Accordingly, where a person, as in the instant case allegedly addresses a Press Conference and makes statements which ultimately turn out to be defamatory of another person, he will be liable as the originator, publisher or author of the Statements, while other persons and members of the press who publish it are liable for repeating or publishing same. The maker of the Press Conference and the Press who further publish it are all joint tort-feasors and may be sued jointly and severally for defamation. That is so because, a person or speaker who knows or is reasonably expected to know that his words may be reported by the Press for the public ought to know that such a statement may be published. Thus, a speech made at a Press Conference will be deemed to have been requested by the maker to be re-published or repeated by the Press to the public. Indeed, it will be naive to assume that the news disseminated at a Press Conference will not be further published by the Press. The tort of defamation or libel is therefore committed where the publication is read by a third party and not where it was written or authored, or where the act complained of took place. See EZEUGWA V ADIMORAH (1993) 1 N.W.L.R (Pt.271) P.620: NAS V ADESANYA (2003) 2 N.W.L.R (Pt.803) P.97: MBADINUJU V I.C.N LTD. (2007) 15 N.W.L.R (Pt.1058), P.524 and AYENI V ADESINA (2007) 7 N.W.L.R (P1.1033 P.233. See also OTOP V EKONG (2006) 9 N.W.L.R (Pt.986) P.533 at P.554.
In the instant case, the Respondent at the lower court pleaded at Paragraphs 5, 26 and 27 of the statement of claim as follows:
“5. The 3rd Defendant was the author and disseminator of the libelous materials contained at page 5 of the Vol. 20, No. 45 of the SUNDAY CHAMPION NEWSPAPER of Sunday 11th November 2007.
26. The said SUNDAY CHAMPION NEWSPAPER was read in and out of Ado-Ekiti and circulates in and around the entirety of the Federal Republic of Nigeria in particular and the whole world in general.
27. The 1st defendant also subscribed to and is listed on the internet on line publications and accordingly all editions of its publication including THE SUNDAY CHAMPION NEWSPAPER OF SUNDAY 11TH NOVEMBER, 2007 EDITION.”
The above stated pleadings of the Respondent therefore show in effect that the SUNDAY CHAMPION NEWSPAPER is read throughout Nigeria including Ado-Ekiti in Ekiti State. The fact that the statement was authored or released to the Press at Abuja is not apparent on the face of the Statement of Claim. Even if it is established that the Appellant made the Press release or authored the Press release at Abuja, once the press publish such a statement in a newspaper and is read in Ado-Ekiti as claimed by the Respondent, the High Court in Ado-Ekiti will invariably have jurisdiction to entertain the matter. Jurisdiction in this sense will not be determined by where the alleged defamatory statement was issued or made alone or where the Plaintiff or Respondent resides, but any place where the alleged defamatory statement is read. The choice of forum in that respect will depend on the plaintiff, considering factors like accessibility of the witnesses and the effectiveness of the judgment that may enure in the case. Accordingly, I am of the view and do hold that, the learned trial judge of the High Court of Ekiti State was in order when he assumed jurisdiction to entertain the matter. This issue is therefore resolved in favour of the Respondent.
That now brings me to issue number three (3); which is:
Was the trial court right to have held that the Appellant in his private capacity is a proper party to suit and that there is a reasonable cause of action against him?
In arguing this issue, learned counsel for the Appellant cited the author of GATLEY ON LIBEL & SLANDER. 11TH Edition at page 227, paragraph 8.1 on the principle of who can sue and be sued in case of libel cases, and which principle was affirmed by this Court in the case of OMEGA BANK PLC V GOVERNMENT OF EKITI STATE (2007) 16
N.W.L.R (pt.1061) P.445 at P.447. That in the instant case, a Press statement was issued in Abuja by the Action Congress but that there is no fact in the Statement of Claim to suggest that either the Action Congress or the Appellant authorised the publication by the CHAMPION NEWSPAPER. That the Appellant is therefore not a proper party to the suit as such, his name must be struck out. it is therefore submitted that, the facts presented by the Respondent in the Statement of Claim show that there is an alleged Press statement issued by the Action Congress, who is not a party to the suit. He then referred to the case of EJABULOR V OSHA (1990) 5 N.WL.R (Pt.148) P.1, to submit that in an action for libel, the plaintiff apart from showing that the defendant made the libelous statement, must go further to establish that the defendant authorised the publication. That there are no facts to establish that either the Appellant or even the Action Congress authorised the publication in the CHAMPION NEWSPAPERS. It was therefore contended that the political party whose interest was canvassed in the alleged statement is crucial and accordingly, the absence of Action Congress in the suit discloses no cause of action against the Appellant. The case of MOBIL PRODUCTION (NIG.) LTD. V LASEPA (2001) 8 N.W.L.R (Pt.715) p.489 at P.502 PARAS F – G; was cited to further submit that, the words complained of in the Statement of Claim were allegedly made by Action Congress and not the Appellant in his private capacity, but the Respondent did not make the Action Congress a party to the suit, and therefore there is no cause of action against the Appellant.
Learned counsel went on to contend that the Action Congress is a juristic person with capacity to sue and be sued. That it is the law that an act carried out for and on behalf of a juristic person such a Company or organization like Action Congress remains that of the organization. The cases of OSIGWE V PSPLS MANAGEMENT CONSORTIUM LTD (2009) 3 N.W.L.R (Pt.1128) P.378 at PP.399 -400. and NIGER PRESS LTD V N.E.L CORP. (1989) 3 N.W.L.R (Pt.107) P.68 were cited in support. It is then submitted that it is the law that parties against whom complaints are made in an action must be made parties to such action and that failure to join such parties robs the Court of its jurisdiction. That in the instant case, the trial court ought to have declined jurisdiction to entertain the suit against the Appellant on the ground that the Appellant is not a proper party to the suit and that the alleged statement was issued by the Action Congress. The case of JIMOH V OYINLOYE (2006) 15 N.W.L.R (Pt.1002) P392 at PP.402-403 was further relied on.
Learned counsel for the Respondent in response to this issue contended firstly that, the issue as to whether the Appellant wrote the alleged libelous statement on behalf of the Action Congress is an issue of fact extraneous to the Statement of Claim and ought to be in an affidavit. That since the Appellant failed to file any affidavit in support of the application; he has limited his objection to point of law and cannot therefore rely on such facts which are not contained in the Statement of Claim. That should we consider the issue, he submitted that, it is the law that the only reason which could make a person a necessary party to an action is that there is a claim against him so that he should be bound by the result of the action, and the question to be settled in the action is one which cannot be effectively and completely settled unless he is made a party. The case of FBN PLC V OZOKWEPE (2006) 4 N.W.L.R (Pt.970) p.422 at p.433 PARAS. G – H was then cited to further submit that, the crucial facts to sustain this issue are as pleaded in paragraph 5 of the Statement of Claim which categorically averred that the 3rd Defendant/Appellant was the author and disseminator of the alleged libelous statement. That at the level of the objection, the averment in the said paragraph 5 is deemed correct, as nowhere in the Statement of Claim was it averred that the Appellant wrote the alleged libelous statement on behalf of Action Congress and the Respondent has not asked for any relief against the Action Congress. It is therefore submitted that in the circumstances, the Action Congress is neither a proper nor a necessary party to the suit and that the matter in controversy can be determined between the Respondent and the Appellant without the Action Congress. He then submitted that the nonjoinder of the Action Congress cannot therefore affect the action let alone defeat it. He buttressed his submission with the case of AKANNI V OLANIYAN (2006) 8 N.W.L.R (Pt.983) P.531 at P.546 PARAS. C – E. per Tabai, J.C.A (as he then was) and UDO v C.S.N.C (2001) 14 N.W.L.R (pt.732) p.116 at p.162 PARAS. C – D. That since the Appellant has not denied the authorship of the libelous statement, he is the proper party and that the issue as to whether or not he wrote the alleged libelous statement on behalf of the Action Congress is one to be determined at the trial.
On whether or not the suit discloses a reasonable cause of action against the Appellant, it is the submission of learned counsel for the Respondent that, in determining whether a suit discloses a reasonable cause of action, the Court will examine only the Statement of Claim. That for the purpose of examination by the Court, it is presumed that the defendant concedes the truth of every averment in the Statement of Claim, particularly, as in this case, where the Appellant has not filed a defence to this suit or an affidavit to his objection. He relied on the cases of COOKEY V FOMBO (2005) 15 NWLR (Pt. 947) P. 182 at P. 197 and ONADEKO V U.B.N. PLC. (2005) 4 N.W.L.R (Pt.916) P.440 at P.460.
He then drew our attention to paragraphs 3, 4, 5, 28, 29 and 30 of the Statement of Claim on the identities of the defendants, the roles played by each in respect of the authorship and publication of the alleged libelous statement, and their wrongful acts. It was therefore submitted that, once the plaintiff’s claim raises triable issues, whether or not he will succeed eventually is not a reason to hold that the suit is devoid of a cause of action. He then cited the cases of ONI V IGBALAJOBI (2006) 9 N.W.L.R (Pt.984) P.180 at P.186. DAIRO V U.B.N PLC. (Supra) at P.166 and YUSUF V AKINDE (2000) 8 N.W.L.R (Pt.669) P.376, to submit that the learned trial judge was right when he held that the Statement of Claim discloses a reasonable cause of action against the Appellant and that the success or otherwise of the claim will be determined at the trial when both parties would have adduced evidence on their pleadings. Again, we were urged to resolve this issue in favour of the Respondent.
My understanding of the argument of learned counsel for the Appellant on this issue is that, the Statement of Claim discloses that the alleged defamatory statement was issued by the Action Congress, who has not been joined in the suit and therefore the absence of the Action Congress in the suit means that no reasonable cause of action has been disclosed against the Appellant. The alleged defamatory statements have been pleaded at paragraph 20 of the Respondent’s Statement of Claim; I understand the content of the said statement pleaded to mean that the Appellant issued the statement on behalf of the Action Congress of Nigeria in his capacity as the National Publicity Secretary of the Party. In that regard he will qualify as an agent or delegate of the Action Congress.The relation of agent and principal is one of the modes by which joint liability in tort arises. It is trite laws that, an agent who commits a tort on behalf of his principal and the principal are joint tort feasors, and may be sued jointly or severally. In other words, an agent who commits a tort on behalf of his principal is a joint tort feasor with his principal and may be liable either alone or together with his principal for his action or conduct. See PAN BROTHERS LTD. V LANDED PROPERTY LTD. & ANOR (1962) ALL N.L.R (Pt.1) P.22, MANAGEMENT ENTERPRISES LTD & ORS V JOHNSON OTUSANYA (1987) 4 S.C.N.J. P.110: IFEANYICHUKWU OSONDU CO. LTD. V SOLEH BONEH (NIG) LTD (2000) 3 N.W.L.R (Pt.656) P.322.
In the circumstance as stated above, it will be a matter of choice for a plaintiff to decide whom he wants to sue. Being joint tort feasors therefore, a plaintiff has the liberty to choose his victim. He may decide to either sue the principal and agent separately or both of them jointly. Although, the plaintiff has a duty to bring all interested parties in the matter into the fray, it does not mean that where he fails to so join, the action will be incompetent or that the jurisdiction of the Court will be ousted for non joinder. Whichever option a plaintiff decides to take, it will be for him to prove his case at the trial and for the defendant who has been sued to show at the trial that he acted within the scope of his duties and therefore not liable. See IZUOGU V EMUWA (1991) 4 N.W.L.R (Pt.183) P.78: IFEANYI GHUKWU V SOLEH BONEH (Supra): CROWN FLOUR MILLS LTD V OLOKUN (2008) 4 N.W.L.R (PT.1077) P.254: EZE V GEORGE (1993) 2 N.W.L.R (PT.273) P.86 at P.100 and YUSUF V ADEYEMI (2009) 15 N.W.L.R (PT. 1165) P.616.

Thus, the non-joinder of a party cannot perse be a basis for ousting the jurisdiction of a competent Court of law except where there are statutory provisions to that effect. In other words, the jurisdiction of a Court of law cannot be ousted on the grounds that a plaintiff has failed to join a party, who ought to have been joined. See IYERE V. B.F.F.M LTD (2008) 8 N.W.L.R (PT.1119) P.300: OLUWANIYI V ADEWUMI (2008) 13 N.W.L.R (PT.1104) P.387: P & C.H.S.C LTD V MIGFO (NIG) LTD (2009) 11 N.W.L.R (PT.1153) P.611 and CROWN FLOUR MILLS LTD V OLOKUN (Supra) at P.282 Per Sankey, J.C.A. In the instant case the Appellant can be and was properly sued in this action. It is now up to him to show at the trial that he acted within the scope of his duties and thus not liable.
It was further contended by the Appellant that the absence of the Action Congress in the suit therefore discloses no cause of action against the Appellant, especially when the 1st and 2nd Defendants at the trial court had filed “terms of settlement”. I find it pertinent to point out at this juncture that in deciding whether or not to strike out a Statement of Claim or suit due to non-disclosure of cause of action or reasonable cause of action, the court must restrict itself to the facts as pleaded in the Statement of Claim without resort to any extraneous facts. In determining whether or not a cause of action exists or a reasonable cause of action exists, a trial court is enjoined to restrict itself to an examination of the totality of the Writ of Summons or Statement of Claim, See P.V.C LTD V LAWAL (2005) 3 N.W.L.R (PT.911) P.121. In the instant case, the Respondent pleaded at paragraphs 5, 6, 20, 26, 31 and 32 or the statement of Claim as follows:
“5. The Defendant was the author and disseminator of the libelous material contained at page 5 of the Vol. 20, No. 45 of the CHAMPION NEWSPAPER OF SUNDAY 11TH NOVEMBER, 2007.
6. The plaintiff avers that the defendants’ libelous publication originated from a premeditated design that was translated into a publication as contained in Vol.1, No.0369 Edition of THE NATION NEWSPAPER OF MONDAY, AUGUST 6, 2007.
20. The plaintiff specifically avers that the defendants in “SUNDAY CHAMPION” Newspaper Vol .20, No.45 of Sunday 11th November, 2007 Edition at page 5 thereof under the Banner of “AC DECRIES ALLEGED INTERFERENCE WITH COURSES OF JUSTICE” Published the following libelous materials and statement under the caption: AC DECRIES ALLEGED INTERFERENCE WITH COURSES OF JUSTICE in Ekiti against the Plaintiff……
26. The said SUNDAY CHAMPION Newspaper was read in and out of Ado-Ekiti and circulated in and around the entirety of the Federal Republic of Nigeria in particular and whole world in general.
31. The plaintiff avers that the libelous materials contained in the SUNDAY CHAMPION Newspaper of Sunday 11, 2007 at page 5 thereof are false, untrue, baseless and was orchestrated to ridicule, malign and smear the reputation of the plaintiff.
32. By reason of the publication of the said words the plaintiff has been gravely injured, damaged in his character and reputation has suffered considerably destruction (sic) and embarrassment and has been brought into public scandal, odium and contempt.”
The plaintiff by the above averment has therefore pleaded the involvement of the Appellant in the publication or dissemination of the alleged libelous statement and that he has been greatly injured in his credit, character and reputation by the said publication. By those pleadings therefore, he has disclosed that he has a reasonable cause of action against the Appellant. I had held earlier on in this judgment that failure of the plaintiff to join the Action Congress on whose behalf the alleged libelous statements were made is no reason in law for holding that the Appellant is not a proper party to the suit or that no reasonable cause of action has been disclosed against him. It does not help the Appellant that the 1st and 2nd Defendants at the trial court had filed “terms of settlement” before the trial court. The cases of OSIGWE V PSPLS MANAGEMENT CONSORTIUM LTD. (Supra) and JIMOH V OYINLOYE (Supra) cited and relied on by learned counsel for the Appellant are not applicable to the facts of this case, as they do not deal with actions bordering on joinder or non-joinder of joint tort feasors. I therefore hold that the Respondent’s Statement of Claim has disclosed a reasonable cause of action against the Appellant. He is therefore a proper party to this suit. I accordingly resolve this issue (issue 3) in favour of the Respondent.
The fourth (4) issues that arise for determination in this appeal is:
Was the trial court right to have held that the Appellant was personally served with the originating processes?
It is the contention of learned counsel for the Appellant here that, service of Originating Processes on parties to a suit is sine qua non to the jurisdiction of Court. The cases of MARK V EKE (2004) 5 N.W.L.R (PT. 865) P.54 at P.78 and KIGA V OGUNMOLA (2006) 13 N.W.L.R (PT. 997) P.377 at PP.394 – 395 were cited in support. It was then contended for the Appellant that, a cursory look at the Record of Appeal, particularly the dates the Writ, Statement of Claim and Exparte Motion for substituted service were filed show that those processes were filed on the same day and that no attempt was ever made to serve the Appellant before the order for substituted service was purportedly made. That the Appellant was sued in his private capacity and not as the National Publicity Secretary of the Action Congress and that there were no facts before the trial court to show that attempts were made to serve the Appellant who has been sued in his private capacity at his residential address. It is therefore contended by the Appellant that, service of the originating processes were effected on the Action Congress which is not a party to this suit at its National Secretariat in Abuja, and so the Appellant was never served personally with the processes. That the Respondent did not justify the exercise of the court’s discretion in respect of the order for substituted service.
Learned counsel for the Appellant then proceeded to submit that, personal service of Originating Process is a fundamental requirement of the Rules of Court and that non-compliance with it affects the jurisdiction of the Court. Order 12 rule 2 of the Ondo State High Court (Civil Procedure) Rules, 1988 applicable to Ekiti State and the cases of CADBURY (NIG) PLG V F.R.N (2005) 5 N.W.L.R (PT.918) P.332 at P.338: OWNERS OF MV ARABELLA V N.A.I.C (2008) 11 N.W.L.R (PT.1097) P.182 at PP.205 – 206 PARAS G – C and G – D were cited in support.
The Respondent submitted that, it is clear from the record that on the 20th November, 2007 upon the application of the Respondent, the lower court granted an order of substituted service of the originating processes on the Appellant by Red Star Courier Services at the National Secretariat of the Action Congress in Abuja. That the Respondent, in pursuance to the said order served the originating processes on the Appellant via the Red Star Courier Service and an affidavit of service was filed before the trial court to that effect. It is contended by the Respondent that, the Appellant has neither applied to set aside nor appealed against the order of substituted service granted by the lower court.
Learned counsel for the Respondent further submitted that the substituted service effected on the Appellant is proper service since it is settled law that an order of court, no matter how bad remains valid and subsisting until set aside by a court of competent jurisdiction. That, in any case, it is not a requirement of the rules of court that an attempt must have been made to serve the processes personally before a party can ask for substituted service. That the order for substituted service of 20/11/2007, having not been set aside or appealed against subsists. That the issue of service of any originating process is a question of fact and not law, and as the Appellant failed to support his objection with an affidavit, he cannot rely on any extraneous fact. We were therefore urged to resolve this issue in favour of the Respondent.
Now, the essence of service, whether personal or substituted, of any originating process on a defendant in any suit or proceeding is to bring to the notice of such a defendant, the pendency, as well as the nature of the claim against him, so that he can take steps to defend or challenge the claim or suit if he desires to do so. It will not suffice that the defendant knows or is informed that a suit has been filed against him, as the fact that he is aware that he has been sued in court does not dispense with the need to serve him with an originating process. Service of any originating process is thus a basic or fundamental in the activation of the jurisdiction of the court against any defendant. Service of process is therefore essentially for the person to whom it is directed to have knowledge that he has a case to answer or claim to dispute before the court indicated in the process. It therefore means that before a court can have jurisdiction to adjudicate on a matter before it, it is a fundamental requirement that a defendant mentioned in the originating process filed before the court is duly served with the process, which may be a writ, originating summons or other originating process. Thus, failure to serve any originating process, where service of the process is required is fatal to the competence of the court to assume jurisdiction over the matter before it. Service of process therefore goes to the root of the jurisdiction of the court, so that a failure to comply with the requirement of service is capable of rendering the proceedings or any step taken in the matter null and void. A party who is required to be served with any originating process, but is not served, is entitled ex debito justitiae to have any order made against him in the absence of such service, set aside, See EIMSKIP LTD V EXQUISITE IND. LTD (2003) 4 N.W.L.R. (PT. 809) P.88; OTOBAIMENE V AKPOREHE (2004) 14 N.W.L.R (PT. 894) P.591: AYOGU V NNAMANI (2004) 15 N.W.L.R (PT.895) P.134 and GUINNESS (NIG) PLC V UFOT (2008) 2 N.W.L.R (PT.1070) P.52.

It would be seen therefore that, basically the law prefers that a party in a litigation should be served personally with the process of the court except where the rules of court so provide or where the court thinks it just and convenient to direct otherwise. Thus order 12 rule 2 of the Ondo State High Court (Civil Procedure) Rules, No.18 of 1987 applicable to Ekiti State, provides that:
“Save as otherwise prescribed by any of these rules, an originating process shall be served personally by delivering to the person to be served a copy of the document’ duly certified by the Registrar as being a true copy of the original process filed, without exhibiting the original.”
However, the law recognises that there may be occasions where personal service may not be possible or feasible; therefore the law has provided a solution by prescribing service by substituted means. See CARRIBEAN TRADING FIDELITY CORP. V N.N.P.C (1992T 7 N.W.L.R (pT.252) p.161 at P.181. Thus order 12 rule 5(a) of the Ondo State High Court (Civil Procedure) Rules (Supra) stipulates that:-
“Where it appears to the court (either after or without attempt at personal service) that for any reason personal service cannot be conveniently affected, the court may order that service be affected either:
(a) by delivery of the document to some adult inmate at the usual or last known place of abode or business of the person to be served.”
In the instant case, the contention of the Appellant as appears to me from his argument is that he was never served with the originating processes personally. That service was affected at the National Secretariat of the Action Congress in Abuja and that the Respondent did not justify the exercise of the Court’s discretion in respect of the Order for substituted service. However, the Respondent countered that, the lower court had granted the Respondent leave to effect service on the Appellant at the National Headquarters of the Action Congress via Red Star Courier Service. That the said order was granted on the 20th November, 2007. This fact was never challenged by the Appellant nor controverted. The argument of the Appellant as I understand it is not that he was not served personally. He reproduced and relied on Order 12 rule 2 of the Ondo State High Court (Civil Procedure) Rules Supra, but cleverly avoided making reference to the other provisions of the said Order 12, especially rule 5 of the said Order 12.The said order 12 rules 5 makes provision for the court to order for substituted service where the occasion so demands. As stated by the Respondent, the trial court made such Order on the 20/11/2007. The Appellant did not apply to have the said Order set aside or even appealed against the said order made by the trial court. That order therefore subsists, as the law is that an order of court no matter how bad subsists until set aside either by the court that made it or on appeal. We have by this appeal not been called upon to set aside the order of substituted service made by the trial court or declare same as void.
The Appellant also contend that no facts were tendered before the trial court to show the attempts or efforts made to serve the Appellant who has been sued in his private capacity before the order of substituted service was made. I had earlier in this judgment observed that there is no application to the lower court to set aside the order or even an appeal filed against it. Indeed, the validity of the order for substituted service made by the trial court was never in issue before the trial court, so the trial court did not pronounce on it. What was in issue is the propriety of the mode of service affected on him by the Respondent. As it has turned out to be, service on the Appellant was affected through substituted means as directed by the trial court and duly supported by Order 12 rule 5(a) of the Ondo State High Court (Civil Procedure) Rules (Supra) as applicable to Ekiti State. Contrary to the contention of the Appellant it is not a requirement that an attempt must have first been made at personal service before an order of substituted service could be granted. The order may be granted “either after or without attempt at personal service.” In that event, I hold that since the Appellant was served through substituted means through an order of the trial court and as the order had not been set aside, there was proper service on him by substituted means. I think it is pursuant to that order that the Appellant put up appearance at the trial court in the first place. This issue (issue 4) should be and is hereby resolved by me in favour of the Respondent.
Though, I had resolved issue one (1) in favour of the Appellant, issues 2, 3 and 4 which in my view form the substance or crux of this appeal have been resolved in favour of the Respondent. The resolution of those issues i.e. issues 2, 3, and 4 against the Appellant has titled this appeal in favour of the Respondent. In the circumstances, I hereby hold that, save for issue 1, this appeal has no merit. It is accordingly dismissed. The ruling of the lower court in Suit No: HAD/128/2007 dated the 6th November, 2008 is hereby affirmed. I award Thirty Thousand Naira (N30, 000:00) as cost in favour of the Respondent.

UWANI MUSA ABBA AJI, J.C.A.: I had read before now the draft of the leading judgment of my learned brother H. M. Tsammani, JCA. I agree entirely with the reasons stated therein which I adopt as mine.
To avoid being repetitive, I just wish to add that the Respondent at the lower court pleaded at paragraphs 5, 26 and 27 of the statement of claim as follows:-
5. The 3rd Defendant was the author and disseminator of the libelous materials contained at page 5 of Vol. 20, No. 45 of the Sunday Champion Newspaper of Sunday 11th November, 2007.
26. The said Sunday Champion Newspaper was read in and out of Ado Ekiti and circulates in around the entirety of the Federal Republic of Nigeria in particular and the world in general.
27. The 1st defendant also subscribed to and is listed on the internet on-line publications and accordingly all editions of its publication including the Sunday Champion Newspaper of Sunday 11th November, 2007 edition.
It is trite that in an action for defamation, the plaintiff must prove that libel has been published. Publication here means the making known of the defamatory matter to some persons other than the person to whom the matter was written. Where as in the instant case, a person addresses a Press Conference and makes statements which ultimately turn out to be defamatory of another person; he will be liable as the originator, publisher or author of the statements while other persons and members of the press who publish it are liable for repeating or publishing same.
The tort of defamation or libel is therefore committed where the publication is read by a third party and not where it was written or authored, or where the act complained of took place. See EZEUGWA VS. ADIMORAH (1993) 1 NWLR (PT.271) 620; N.A.S VS ADESANYA (2003) 2 NWLR (Pt. 803) 97 MBADINUJU VS I.C.N. LTD. (2007) 15 NWLR (PT. 1058) 524: AYENI VS ADESINA (2007) 7 NWLR (PT.1033) 233 and OTOP VS EKONG (2006) 99 NWLR (PT.986) 533 @ 554.
What then the import or effect of the Respondent’s pleadings is as reproduced above? The averments in the pleadings reproduced above shows that Sunday Champion Newspaper is read not only in Nigeria including Ado-Ekiti, in Ekiti State but the whole world in general.
The contention that the libelous statement was authored or released to the press at Abuja is of no moment as once the press published such a statement in a Newspaper that is read throughout Nigeria including Ado-Ekiti, the High Court in Ado-Ekiti will have jurisdiction to entertain the matter. Jurisdiction here is not determined by where the defamatory statement was issued or made alone or where Plaintiff or the Respondent resides, but any place where the alleged defamatory statement is read.
The learned trial judge of the Ekiti State High Court was therefore right in holding that he has jurisdiction to entertain the matter. It is for this and the detailed reasons in the judgment of my learned brother, that I also agree that the appeal is devoid of any merit, save for issue 1, and the appeal is accordingly dismissed. I also affirm the ruling of the lower court in suit No. HAD/128/2007 delivered on the 6th November, 2008. I endorse the consequential order as to costs.

CHIDI NWAOMA UWA, J.C.A.: I have read before now the judgment delivered by my learned brother, HARUNA M. TSAMMANI, J.C.A. I entirely agree with his reasoning and conclusion in resolving the first issue in favour of the appellant and issues 2, 3, and 4 in favour of the Respondent.
I would add under issue four, that the respondent is not in a position to justify the exercise of the court’s discretion in respect of the order for substituted service granted the respondent on 2/11/07. That question could only be raised on the challenge of the order granted by the trial court, there is nothing on record to show that the grant of the order for substitution was challenged in any way, before the trial court or this court by way of variation, review or appeal whatever the case may be. What the appellant has sought is for the respondent to explain the trial court’s discretion. Judicial Discretion as defined in Black’s Law Dictionary, 7th Edition at page 479 is:
The exercise of judgment by a judge or court based on what is fair under the circumstances and guided by the rules and principles of law; a court’s power to act or not act when a litigant is not entitled to demand the act as a matter of right.”
The appellant cannot be expected to explain the trial judge’s sense of judgment. For the fuller detailed reasoning in the leading judgment, I also hold that the appeal lacks merit and same is also dismissed by me.
I abide by the order made as to costs.

Appearances

V. O. M Longe (Mrs.) with (Bashir A. Ramoni Esq.)For Appellant

AND

Oluwasesan Dada Esq. (with O. O Agbo Esq. and Akeem Olaniyan Esq.)For Respondent