META PLATFORMS INC. v. EMMANUEL
(2022)LCN/17096(CA)
In The Court Of Appeal
(BENIN JUDICIAL DIVISION)
On Tuesday, December 20, 2022
CA/B/165/2018
Before Our Lordships:
Theresa Ngolika Orji-Abadua Justice of the Court of Appeal
Tunde Oyebanji Awotoye Justice of the Court of Appeal
Sybil Onyeji Nwaka Gbagi Justice of the Court of Appeal
Between
META PLATFORMS INC. APPELANT(S)
And
MISS FAVOUR OMOYE EMMANUEL RESPONDENT(S)
RATIO
THE POSITION OF LAW WHERE ARE CONFLICTING AVERMENTS IN AN AFFIDAVIT
The averments in the affidavits are seriously conflicting, oral evidence is needed to resolve the conflict. The conflict is on the one of the core issues before the lower Court. The required evidence has not been adduced. In taking this appeal, there is the need for circumspection in order not to predetermine the matter before the lower Court. AUGIE JSC, had this to say on this point”
“It is the opinion appealed against that is affirmed or reversed and this Court cannot undertake decision which may be of most importance without hearing what the Court below had to say about it. See UOR VS. LOKO (1988) 2 NWLR (PT 77) 430 (SC), AJUWON V. ADEOTI (1990) 2NWLR (PT. 131) 271 SC.” PER AWOTOYE, J.C.A.
TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the appeal filed by Defendant against the Judgement of High Court of Edo, Benin Judicial Division delivered in suit No.B/167/0S/2016 on 12/03/2018.
By her originating summons, the claimant sought the determination of the following questions:
1. Whether the Defendant’s act of publishing or permitting the publication of a photograph of the claimant’s face photoshopped on another girl’s naked body (with words therein stating that the claimant was caught whilst stealing a Mobile Telephone in Oba Market in Benin City, Nigeria) and circulating or permitting the circulation of the said photograph and words among several persons on its widely used website www.facebook.com worldwide, including Benin City in Edo State, without the claimant’s prior knowledge or consent is not a gross violation of the claimant’s Right to Privacy guaranteed by Section 37 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and illegal and actionable.
2. Further, or in the Alternative, whether the Defendant’s act of publishing or permitting the publication of a photograph of the claimant’s face photo shopped on another girl’s naked body (with words therein stating that the claimant was caught whilst stealing a Mobile Telephone in Oba Market in Benin City, Nigeria) and circulating or permitting the circulation of the said photograph and words among several persons on its widely used website www.facebook.com worldwide, including Benin City in Edo State, is not a defamation of the character and person of the Claimant.
3. Whether this Honourable Court has the power to grant the reliefs sought by the claimant to remedy the Defendant’s action.
The claimant consequently sought the following reliefs:
a. A DECLARATION that the Defendant’s act of publishing or permitting the publication of a photograph of the claimant’s face photo shopped on another girl’s naked body (with words therein stating that the claimant was caught whilst stealing a Mobile Telephone in Oba Market in Benin City, Nigeria) and circulating or permitting the circulation of the said photograph and words among several persons on its widely used website www.facebook.com worldwide, including Benin City in Edo State, without the claimant’s prior knowledge or consent is not a gross violation of the claimant’s Right to Privacy guaranteed by Section 37 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and illegal and actionable is unlawful, illegal and breach of the claimant’s Right to Privacy guaranteed by Nigeria law and Section 37 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
b. Further, or in the Alternative, a Declaration that the Defendant’s act of publishing or permitting the publication of a photograph of the claimant’s face photo shopped on another girl’s naked body (with words therein stating that the claimant was caught whilst stealing a Mobile Telephone in Oba Market in Benin City, Nigeria) and circulating or permitting the circulation of the said photograph and words among several persons on its widely used website www.facebook.com worldwide, including Benin City in Edo State, is not a defamation of the character and person of the Claimant.
c. A MANDATORY ORDER OF INJUNCTION compelling the Defendant to remove the offending/defamatory picture and words from its website (www.facebook.com) within 14days of the judgment of this Honourable Court.
d. AN AWARD of the sum of N1,000,000,000.00 (One Billion Naira) as General and/or Exemplary Damages against the Defendant for flagrant breach of the Claimant’s constitutionally guaranteed Right to Privacy and /or for the Tort of Defamation of the Claimant.
e. INTEREST on the Judgment sum at the rate of 10 percent per annum from the date of Judgment until entire Judgment sum is liquidated.
f. A PERPETUAL INJUNCTION restraining the defendant, by itself, its servants, agents, assign and/or privies from further publication of the offensive picture and Defamatory words of the Claimant on its website www.facebook or on any other associated website.
g. COST
The summons was supported by 37 paragraphed affidavit sworn to by the claimant and another 15 paragraphed affidavit sworn to by one Patience Bagudu and written address.
The defendant vide a motion on notice prayed for an order dismissing or striking out the originating summons comprised in the suit in its entirety as same was incompetent ab initio and that the lower Court lack the jurisdiction to entertain the suit.
The grounds for application for dismissal are:
“i. This suit was commenced in the High Court of Edo State by the Claimant/Respondent via an Originating Summons. The Claimant/Respondent is seeking the determination of three (3) questions as set out on the face of her Originating Summons. The Claimant/Respondent has also sought various declaratory, injunctive, and punitive reliefs from this honourable Court as evident in the prayer set out in her originating Summons.
ii. From the totality of the claim as made out in the Claimant/Respondent’s Originating Summons and the supporting affidavits, It is beyond doubt that the main plank of the Claimant/Respondent’s cause of action is premised on tort of defamation.
iii. The suit is grossly incompetent as the Claimant/Respondent has sued the wrong party. The Claimant/Respondent has sued Facebook Inc. Facebook Inc. is not the entity responsible for the control and management of the facebook service in Nigeria.
iv. By clause 15 (2) of Facebook’s Statement of Rights and responsibilities, which the Claimant/Respondent has agreed to be contractually bound by, the Claimant/Respondent has agreed that the venue for the adjudication of this suit would be outside Nigeria. Therefore, this Honourable Court lacks jurisdiction to entertain this suit.”
In opposition, the claimant filed 20 paragraphed affidavit and written address.
The defendant further filed a further affidavit containing 24 paragraphs.
After hearing the parties, the learned trial Judge ruled that:
(i) the proper parties were before the Court.
(ii) and that the action was wrongly commenced by Originating Summons.
(iii) and ordered parties to file pleadings.
Dissatisfied with the said ruling, the defendant filed Notice of Appeal containing two grounds of appeal.
After transmission of record of appeal to this Court, parties filed and exchanged briefs of argument.
The Appellant Amended Brief of Argument was filed on 25/03/2022 but deemed properly filed on 03/11/2022, the said brief was settled by counsel for the Appellant OBAFEMI AGABA. BAMIDELE UCHE IGBINEDION for the Respondent in response filed Respondent’s Brief of Argument on 02/11/2022 which was deemed properly filed on 03/11/2022.
OBAFEMI AGABA later filed Amended Appellants Reply Brief on 03/11 2022.
SUBMISSIONS OF THE COUNSEL
APPELLANT’S BRIEF OF ARGUMENT
ARGUMENT ON ISSUES ONE
Learned Counsel to the Appellant submitted that for a Court to be competent and have jurisdiction over a matter, proper parties must be identified.
The counsel further submitted that before an action succeeds, the parties to it must be shown to be proper parties to whom right and obligation arising from the cause of the action attach. He cited G & T INVESTMENT LTD. V. WITT & BUSH LTD.(2011) NWLR (pt. 1250) PG 500 at PG538 PARAS F, AMUDA V. AJOBO (1995) NWLR (PT. 406) PG 170 AT 182, AKINDELE V. ABIODUN (2008) LPELR -8557 (CA).
Learned Counsel to the Appellant contended that since the appellant is not a proper party, the only option left for the Court to decide is to dismiss or strike out the case against appellant for lack of Jurisdiction. He relied on G & T INVESTMENT LTD. V. WITT & BUSH LTD.(supra)
RESPONDENT’S BRIEF OF ARGUMENT
ARGUMENT ON ISSUE ONE
Learned Counsel to the Respondent submitted that the appellant who owns and operates the website is proper party to be sued. The counsel further submitted that it has cause of action against the appellant who caused the offensive Publication circulated on its website www.facebook.com is the proper party to be sued. He cited OMEGA BANK PLC. V. GOVERNMENT OF EKITI STATE (2007) ALL FWLR (pt. 386) 658 at 682, PARA B –G (CA).
Counsel for the Respondent in his brief raised preliminary objection which he argued in his brief.
Counsel for the Appellant responded to the preliminary objection in PART A of Appellant’s Amended Reply Brief. I have noted the objection of the appellant to the preliminary objection of the Respondent to the effect that the necessary filing fees to activate the jurisdiction of this Court to hear and determine the preliminary objection Order 10, Rule 1 of COURT OF APPEAL RULES 2021 makes it mandatory for Notice of Preliminary Objection to be filed. Filing Fees as specified under ORDER 12 Rule 1(1) of the Rules must mandatorily be paid unless as provided by the rules. Where such is not done, the process so filed is incompetent and should be struck out. It deprives the Court of the jurisdiction. See OKOLO VS UBN LTD (2004) 3 NWLR (PT.859) page 87, NIGERIA AGIP OIL CO. LTD vs. NKWEKE & ANOR, (2016) 7 NWLR (Pt. 1512) P. 588. See also FIRST BANK OF NIGERIA PLC vs. ALHAJI ISIYAKU YAKUBU suit No. CA/YL/50/2012 PER JAURO JCA.
In view of the above, this preliminary objection not having been filed and appropriate filing fees not having been paid is struck out on ground of incompetence.
MAIN APPEAL
GROUNDS OF APPEAL
GROUND ONE
The learned trial Judge erred in law when he failed to give judgment in favour of the Appellant in terms of the Appellant’s claims before the lower Court or such part of it as the Appellant established and instead ordered parties to file and exchange pleadings.
GROUND TWO
The learned trial Judge erred in law when he did not resolve (whatever conflict was apparent) by resort to documentary evidence before the Court.
GROUND THREE
The learned trial Judge erred in law when he failed to give judgment on the Originating Summons in favour of the Appellant.
Learned counsel for the Appellant OBAFEMI AGABA in his Amended Appellant’s Brief of Argument crafted two issues for determination as follows:
1. WHETHER THE APPELLANT IS A PROPER PARTY IN THE PROCEEDINGS IN SUIT NO B/167/0S/2016.
2. WHETHER THE LOWER COURT LACKED JURISDICTION TO ENTERTAIN SUIT NO B/167/0S/2016.
BAMIDELE UCHE IGBINEDION for the Respondent in this Respondent’s Amended Brief of Argument also donated similar issues for determination.
Before proceeding to determine this appeal there is need for me to state that it is an interlocutory appeal against the decision of lower Court ordering that the parties should file pleadings in line with ORDER 3 RULE 3 of the Edo State High Court (Civil Procedure Rules, 2012. The statement of NWEZE JSC in CBN vs AKINGBOLA (2019) LPELR – 48807 (SC) is very apposite at this juncture. His Lordship opined thus:
“Prudence … ought to have dictated to him to await the conclusion of the trial; thenceforth, he would, if dissatisfied with the judgment in substantive case, proceed to appeal against it. INTERNATIONAL AGRIC, IND. (NIG) LTD & ANOR v. CHIKA BROTHERS LTD (1990)1 NWLR (T. 124) 70 P1, DAIRO vs UNION BANK OF NIGERIA PLC & ANOR (2007) ALL FWLR (Pt. 392) 1846, 1906. We shall continue to look askance at situations, such as those engendered by the said interlocutory appeal, which occasion frustration of proceedings at trial Court. They should no longer be condoned or brooked. INTERNATIONAL AGRIC, IND. (NIG) LTD & ANOR v. CHIKA BROTHERS LTD; DAIRO vs UNION BANK OF NIGERIA PLC & ANOR (supra). They scandalise the integrity of judicial process.”
Interlocutory Ruling was delivered by the lower Court in the matter now on appeal on 12/03/2018. The appellant ought to have waited till final determination of substantive action before appealing to this Court.
I am however mindful of the fact that this is an interlocutory appeal and it is not permissible in law at this stage to make comments on the merit of the substantive case. See EHINDERO V. FRN & ANOR (2018) 5 NWLR PART 1612 P. 301.
RESOLUTION OF ISSUES
Whether the Appellant is a proper party
The contention of the claimant in the originating summons is that the appellant is the proper party to be sued. See paragraphs 29 & 30 of the affidavit in support:
“29. That the picture of my face on the naked body of me increased the traffic to the Defendant’s website, thus contributing to their profit.
30. That the Defendant operates the commercial website where it offers people all over the world including the unknown person who posted the naked photograph of my face on somebody’s naked body, the opportunity to post naked photographs and pornographic information about other people (including me), without ensuring that any photograph being posted had the prior consent of the person shown in it.”
And see paragraphs 6-15 of counter-affidavit to undated affidavit of Oloruntobi Joledo:
“6. That in specific reply to paragraph 7(iii) of the Affidavit of Oloruntobi Joledo, I have never seen or hear of the Defendant/Applicant’s Statement of Rights and responsibility until I saw it attached to the affidavit. It was not contained on the facebook page where my picture was superimposed on a naked picture of another girl, which I am complaining against in this case, nor did it appear in all the pages where my picture was copied to, read, shared and distributed.
7. That in specific reply to paragraph 7(iv) of the Defendant/applicant’s Affidavit, I know that the said document attached a Exhibit AU1 does not in any way stipulate that facebook Ireland limited is the publisher or owner of the website where the publication against me was made. In addition, the said document does not say that the rights, responsibilities and liabilities of www.facebook.com belongs to facebook Ireland Limited.
8. That further to paragraph 7(iv) of Oloruntobi Jolede’s Affidavit, I know that Facebook Ireland Limited did not publish the material which I am complaining against. I therefore cannot see the relevance or role of facebook Ireland Limited in the events. Even then, I am not a Facebook user, but a victim of their publication.
9. That in specific reply to paragraph 7(v) of Oloruntobi Jolede’s, Affidavit, I did not enter any agreement with the Defendant/Applicant to publish a photograph of my face superimposed on the naked picture of another girl, or in any way however.
10. Further to the above the contents of the Publication which is the subject matter of the suit before this Honourable Court was posted on the Defendant/Applicant’s website www.facebook.com by one Efosasere Raymond.
11. That the said Efosasere Raymond is unknown to me I have no knowledge of where he resides.
12. That in specific reply to paragraph 7(vi) the Defendant/Applicant operates the website www.facebook.com and the publication was made on the Defendant/Applicant website.
13. That in specific reply to paragraph (i) I have never seen the Defendant/Applicant’s claimed Statement of Right and Responsibilities and I could not have agreed to the contents of a documents which I have never seen. In addition, I did not have any form of agreement with www.facebook.com when I searched the internet to confirm the publication made on the Defendant/Applicant’s website nor did I agreed to or consent to any agreement whatsoever howsoever, the existence of alleged Statement of Rights and Responsibilities is alien to me.
14. That the said Publication was read and seen on the Facebook page of Efosasere Raymond on the Defendant/applicant’s website www.facebook.com even by people who did not own or operate a facebook page.
15. That contrary to paragraph (ii) (sic) I did not agree to any of the condition stated in or on the entire Statement of Rights and Responsibilities and the said statement never display to me when I searched the internet using my Blackberry Bold 5 smartphone to search the facebook account of one Efosasere Raymond on the thread http://www.facebook.com/eferayenice?fret=tsm .
The Defendant in its counter-affidavit controverted the above averment in paragraphs 7-12 of its further affidavit:
“7. The Defendant/Applicant is a company registered in United States of America having its registered office address at 1 Hacker Way, Menlo Park, California.
8. The Defendant/Applicant is not responsible for operating or controlling the face book service in Nigeria or in any other territory besides the United States and Canada.
9. Facebook Ireland limited (“Facebook Ireland”), a company registered under the laws of Republic of Ireland, is the entity that operates and controls facebook services for user outside the United State and Canada, including Nigeria, Exhibit OEO 1 attached herewith is a copy of facebook Ireland’s Certificate of Incorporation on conversion to a Private Company Limited Shares.
10. Facebook Inc. provides the Facebook services to the Users in the United States and Facebook Ireland provides services to users outside the United States and Canada, including Nigeria.
11. Exhibit OEO 2 attached herewith is a screenshot from the Facebook website at URL http://www.facebook.com/policy.php, which confirms that Facebook Ireland is the data controller for users residing outside the United States and Canada, accordingly, any enquiries regarding Facebook services outside the United States and Canada, including Nigeria, should be directed to Facebook Ireland.
12. Accordingly, Facebook Ireland is the data controller for the Facebook services in Nigeria. In other words, the Defendant/Applicant, Facebook Inc., does not operate or control the Facebook service that is accessible to users in Nigeria.”
The averments in the affidavits are seriously conflicting, oral evidence is needed to resolve the conflict. The conflict is on the one of the core issues before the lower Court. The required evidence has not been adduced. In taking this appeal, there is the need for circumspection in order not to predetermine the matter before the lower Court. AUGIE JSC, had this to say on this point”
“It is the opinion appealed against that is affirmed or reversed and this Court cannot undertake decision which may be of most importance without hearing what the Court below had to say about it. See UOR VS. LOKO (1988) 2 NWLR (PT 77) 430 (SC), AJUWON V. ADEOTI (1990) 2NWLR (PT. 131) 271 SC.”
ISSUE TWO
Whether the lower Court lacked jurisdiction to entertain Suit No. B/167/0S/2016.
This issue is contingent upon the final resolution of issue one in that it is closely intertwine with the issue of proper party in the case before the lower Court. In resolving this issue, who the defendant is and whether or not the defendant operates its business in Nigeria have to be determined. It must also wait otherwise it becomes a predetermination of the case before the lower Court.
In the circumstance, I shall in line with ORDER 23 Rule 11 of the Court of Appeal Rules, Section 15 of Court of Appeal Act (as amended) of 2005 remit this appeal back to the lower Court for the conclusion of hearing by the High Court of Justice Edo State.
In the circumstance, Suit No. B/167/0S/2016 between MISS FAVOUR OMOYE EMMANUEL VS. FACEBOOK INC., is hereby remitted back to the lower Court for re-assignment by the Honourable Chief Judge, Edo State to another High Court judge for hearing and final determination.
Cost of N300,000.00 (Three Hundred Thousand Naira) is awarded in favour of the Respondent.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.
SYBIL ONYEJI NWAKA GBAGI, J.C.A.: I had the privilege of reading the draft of the judgment just delivered by my learned brother, TUNDE OYEBAMIJI AWOTOYE, JCA.
My learned brother has dealt extensively well with the issues raised. I have nothing to add nor subtract.
I am in agreement with his reasoning and conclusions. I abide by the orders in the lead judgment.
Appearances:
OBAFEMI AGABA, with him, TOYOSI ODUNMBAKU For Appellant(s)
B.U. IGBINEDION For Respondent(s)
