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Smithlink Beecham & Anor v. Prex Limited

Court of Appeal

Judgement delivered on Wednesday, April 4, 2012
Citation: 55 NIPJD [CA. 2012] 217/2005
Suit No. CA/L/217/2005      Jurisdiction: Nigeria

BEFORE THEIR LORDSHIPS

HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JOHN INYANG OKORO, J.C.A.
SIDI DAUDA BAGE, J.C.A. (Delivering the Lead Judgement)

Appearances: T. Olobor (with O. Olorumbe) for the Appellant
O. Olufor (with O. Oyekan) for the Respondent

I. FACTS

This is an appeal against the judgment of Okeke J, sitting at the Federal High Court in Abuja, delivered on 27th September 2002. The facts that led to this appeal are as follows:

The 1st Respondent as plaintiff filed this suit seeking in the main a perpetual injunction to restrain the defendants from producing, reproducing, adapting, broadcasting and or transmitting in any medium the ”GELETE” Television Game programmes, damages for the infringement of the copyright to the said ”GELETE” on the footing of the general damages in the sum of N25,000,000.00 (Twenty-five Million Naira) and in the alternative an account of the profit made by the defendants from the said infringement and payment of the amount found to be due on the taking of such account and costs of the action.

At the conclusion of evidence by all parties written addresses were ordered and adopted by the parties on the 30th of May 2001, judgment was later delivered on the 27th of September 2002 in favour of the 1st respondent in the sum of N1,000,000.00 (One Million Naira) only in full and final settlement of its interest in GELETE against the defendants. The 1st, 2nd defendants now appellants being dissatisfied with the judgment brought this appeal.

The appellants brief was dated and filed on the 25th of June 2009.

The respondent’s brief dated and filed the 25th of February 2011 was deemed properly filed on the 9th of December 2011.

Appellants’ counsel Obatosin Ogunkeye Esq identified three (3) issues for determination as follows:

(1) Whether a valid judgment was delivered by the learned trial judge?

(Ground 1 (one) of the Notice of Appeal)

(2) Whether the plaintiff/respondent is entitled to any compensation on account of any similarity between the television program called Okwe-Dike and the television program called ”GELETE” (Grounds 2, 3, and 4 of the Notice of Appeal)

(3) If the answer to issue 2 is in the affirmative, whether the quantum of the monetary award made by the learned trial judge is justified (Grounds 5 and 5 of the Notice of Appeal)

On the other hand, respondent’s counsel Wole Oluton Esq, distilled four (4) issues for determination as follows:

(1) Whether the 1st respondent discharged the onus of proving that copyright existed in the work.

(2) Whether the learned trial judge considered the issues raised by parties in this suit before deciding the suit in favour of the 1st respondent.

(3) Whether the 1st respondent is entitled to compensation in respect of similarity between the television programme called ”Okwe-Dike” and the Television programme called ”GELETE”

(4) Whether in the circumstances of this case the learned trial judge was right in awarding the 1st respondent the sum of N1,000,000.00 (One Million Naira).

I will adopt the appellants/ issues, as their issue No. 1 is similar to the 1st respondent’s issues 1 and 2. Also the appellants’ issue 2 is similar to 1st respondent issue 3. Appellants’ issue 3 is similar to 1st respondent’s issue 4.

ISSUE ONE

This issue covered the appellants’ issue No. 1 and the 1st respondent’s issues 1 and 2.

Learned counsel to the appellants submitted that, a cursory look at the judgment of the lower court shows that the trial judge did not examine issues, considered arguments of counsel, did not refer to any principle of common Law or to any statute or any judicial authority. The judgment is totally bereft of legal reasoning and does not qualify as a judgment according to law. See:- Ofogbue & Anr. Vs. Nubia & 4 Ors (1972) All N.L.R. 664, Uka vs. Irolo (1996) NWLR (pt.441) 278 at 236; Okonji vs. Njokan (1991) 7 NWLR (pt 202) 131 at 155; Ndika vs. Chiejina (2003) 1 NWLR (802) 451 at 482 – 483; Isyaku v. Master (2003) 5 NWLR (pt. 814) 443 at 464.

Learned counsel further submitted that miscarriage of justice has arisen in this case, as a result of the failure of the learned trial judge to properly evaluate the evidence before him and apply applicable legal principles to the issues raised.

The judgment ought to be set aside.

On the other hand the 1st respondent’s counsel submitted that, the combined effects of exhibits A, B, C and D and the uncontroverted/unchallenged evidence of the 1st respondent as to its right of ownership of the copyright in ”GELETE” by the appellants through the evidence of their witness under cross examination when he admitted that the 1st respondent is the owner of the copyright in ”GELETE” and creator of same clearly show that the appellants have admitted same. Consequently a fact which has been admitted requires no further evidence in proof of it. In view of the above therefore the 1st respondent has fully discharged the onus of proving that copyright existed in the work and this court is urged to so hold.

Learned counsel further submitted that, upon a careful consideration of the peculiar circumstance of this case, the learned trial judge was right in his judgment. The trial judge in his judgment carefully considered all the issues raised by the parties.

Learned counsel further submitted that, the argument of the appellant that, the judgment of the learned trial judge was erroneous based on the fact that the trial judge did not consider all issues raised by the parties is no doubt misconceived as the purported error (if any) was not substantial enough to ground an appeal or vitiate the judgment. See: Agbabiaka vs. Saibu (1998) 10 NWLR (pt 571) 534 at 537 Ratio 4.

Learned counsel submitted further that no miscarriage of justice has been occasioned by the judgment of the learned trial judge, and this court is urged to so hold

In considering the arguments put forward by the parties on the viability or otherwise of the judgment of the trial court, the appellants and the 1st respondent position was carefully examined.

While the appellants had urged upon this court to take a cursory look at the judgment of the lower court, which shows that the learned trial judge apparently, could not be bothered with examining issues, consider arguments of counsel and reaching a decision on those issues based on law, judicial precedents or legal principles. To the appellants it appears that the learned trial judge was simply putting in minimal effort to get rid of the problem that delivering the judgment has constituted. The appellants simply stopped there. They did not proceed by way of demonstration to this court, to show the aspect, portion, part, or the body of the judgment which is bereft of the essential requirements of a valid and sustainable judgment in law.

The 1st respondent took up the mantle in his argument, by reproducing in verbatim the part of the judgment relating to the overall summary of the issues raised by the parties on pages 2 and 3 of the judgment thus:

”A television game in Yoruba known as GETETE as alleged in the statement of claim was developed by the plaintiff. The production and broadcast of which was sponsored by sterling products (Nig.) PLC who are the predecessors of the 1st defendant. The television programme was used to promote the 1st defendants product known as PANADOL EXTRA, in some states with Yoruba speaking evidence. After the successful broadcast of Gelete, an attempt for the production of an Igbo version of Gelete by the plaintiff and the 1st defendant failed. Later a television game programme in Igbo language known as Okwedike was broadcast in some Eastern States. The plaintiff sued the defendants for infringement of its copyright in the television programme Gelete.

The defendants denied that authorship of the concept Gelete was that of the plaintiff alone. That the plaintiff was paid professional fees by the 1st defendant for all expenses for the development and production of the television programme Gelete.

That the 1st defendant is the owner of the intellectual property right in the T.V. game programme Gelete. In the alternative the 1st defendant is a co-owner or co-author of any intellectual property right in Gelete or its concept. That copyright. That copyright does not subsist in the concept format or idea of the Gelete television programme. That Okwedike has not infringed any copyright owned by the plaintiff in the television program Gelete.

Each side led Evidence in support of its case parties ventilated their legal positions in the written address. Arguments as contained in the written address are incorporated as part of this judgment, I have considered the evidence led and the written address. It is clear to me that the television game program in Yoruba language known as Gelete was initially the idea of the plaintiff Chief Executive … The plaintiff is therefore awarded the sum of One Million Naira in full and final settlement of its interest in Gelete against the defendants.

No order as to costs.”

The above is the summary of the judgment of the trial court as encapsulated by its beneficiary the 1st respondent. What then are the essential features of a valid judgment? The Supreme Court per Nnaemeka-Agu JSC (as he then was) in Ayinde Adeyemo vs. Okunola Arokopo (1988) SCNJ 1 at 15 stated:

”In my opinion a judgment of a court ought not to be, as it were, a rule of thumb. In my opinion the word ”judgment” in this context, as in the context, as in the context of appeals includes the reasons for judgment. It is wider in connotation than that formal ”judgment” which is enrolled, sealed and issued to the successful party and entered in the books of the court. Where the reasons for judgment in this broad sense and defective or non-existing because the issues have not been resolved it lacks its very essence and is vulnerable. For it is supposed to finally dispose of all the controversy as to any of the matters in issue between the parties in the suit, none of the issues raised in the action ought to stand over for further adjudication in future. And furthermore the judgment must not only demonstrate in full a dispassionate consideration of all the issues properly raised and trial in the case but also flow logically from such an exercise.” Also see: Polycarp Ojogbue & Anor vs. Ajie Nnubia & Ors (1972) 7 All N.L.R. (pt 2) 226.”

This court again examined the judgment of the trial court which is contained at pages 211, 212 and 213. The entire judgment cover two pages and one quarter (2 1/4). The entire body of the judgment says no more than the summary narrated by the 1st respondent in his brief of argument already stated earlier in this judgment. The first page of the judgment dwelt essentially on the chequered history of the assignment of this matter for judgment by the Hon. Chief Judge of Federal High Court. How the transfer of the trial judge, who was then sitting in Lagos to Abuja affected his part heard cases including this one on appeal. All administrative experiences with the two Chief Judges of the Federal High Court, before he eventually returned to Lagos only to deliver this judgment.

It must be stated in here and now that administrative arrangement of any court (Federal High Court inclusive) cannot be used as a excuse to deny parties or litigants before it their proper right of adjudication, a full and dispassionate consideration of all the issues raised before it. In short the judgment appealed against, this one, lacks all the material particulars of a good judgment as stated in the case of Ayinde Adeyemo vs. Okunola Arokopo (supra) earlier on cited.

The 1st respondent who benefited from the judgment admitted in his brief of argument at page five (5) paragraph VI, the glaring short coming of this judgment, wherein he stated:

“It is further submitted that the argument of the appellant that the judgment of the learned trial judge was erroneous based on the fact that the trial judge did not consider all issues raised by the parties is no doubt misconceived as the purported error (if any) was not substantial enough to ground an appeal or vitiate the judgment.”

The 1st respondent treated the failure of the trial judge to consider issues raised by the parties, dealt with them and gave reasons for so doing as being not substantial enough to ground an appeal or vitiate the judgment. Yet the same 1st respondent in his brief of argument at page five (5) paragraph IV cited the pronouncement of this court in the case of Michika Local Govt. vs. National Population Commission (1998) 11 NWLR (pt. 573) 201 at 204 Ration 6, on what every good judgment must contain.

It states:

”Every good judgment must contain the following ingredients

(a) an introduction of the parties and the nature of the action;

(b) the issue in controversy;

(c) summary of evidence called by each party.

(d) resolution of the issue in controversy, and

(e) a verdict and a consequential order or orders.”

In the instant case the judgment of Federal High Court contained in pages 211, 212 and 213 of the record of proceedings. It shows the name of the parties, the nature of the complaint, however the issues raised by the parties were not stated, dealt with, and reasons for the decision given, there was no summary of evidence by each party. The award of damages was made of N1,000.000.00 (one million naira) without stating properly the mode of assessment used to arrive at that figure or reference to any law that governs that subject. In short the award was arbitrarily made the trial judge without recourse to any rule of procedure on such award. Again parties had no benefit of having their evidence placed on an imaginary scale. Having regard to the requirement of a good judgment, the one before this court, in the instant appeal, has not passed the Litmus test of a good one. Issue No. 1 is resolved in favour of the appellant and against the respondents.

Issues 2 and 3 of the appellants’ brief of argument on whether the plaintiff/respondent is entitled to any compensation on account of any similarity between the television program called Okwe-Dike and the television programme called ”Gelete” and if the answer to issue 2 is in the affirmative, whether the

quantum of the monetary award made by the learned trial judge is justified, can be conveniently considered together.

Learned counsel to the appellants submitted that, the trial judge in his judgment did not specify the interest in the television game show programme called Gelete, which the plaintiff/respondent had in common with the defendant. Indeed the learned trial judge, in his judgment, had expressed doubt that any intellectual property right subsisted in the television game named ”Gelete” hence he could not have been awarding the plaintiff/respondent compensation for the infringement of its alleged copyright or of any other intellectual property right. Learned counsel further submitted that given the fact that the claim of plaintiff/respondent for a monetary award is based on an allegation of infringement of copyright, the court cannot validly make an award in favour of the plaintiff/respondent based on any interest the plaintiff/respondent right have in the television game show programme called ”Gelete” other than the copyright interest on which the plaintiff/respondent’s claim was based. The court cannot grant a remedy which the plaintiff/respondent has not claimed. See: Clay Industries (Nig) Ltd vs. Aina (1997) 1 NWLR (pt 516) 208.

Learned counsel further submitted that it is well settled that an appellate court will review an award of damages made by the trial court where the trial judge in assessing the damages applied a wrong principle of law or that the amount is so ridiculously low or ridiculously high that it must have been a wholly erroneous estimate of the damages. See: Uwa Printers Ltd vs. Investment Trust Ltd (1988) 5 NWLR (pt. 92) 110 at 722.

Learned counsel further submitted that, in awarding compensation of One Million Naira to the plaintiff/respondent, the learned trial judge made no reference to any principle of law, neither did he refer to any piece of evidence as the basis for his arrival at that figure. He simply made an award arbitrarily. Such an award ought not be allowed to stand. See Ekwanife vs. Wayne (WA) Ltd. (1989) 5 NWLR (pt 122) 422.

Also on the side of the 1st respondent, issues 3 and 4 will be considered together.

Learned counsel to the 1st respondent submitted that, the 1st respondent is entitled to general damages having established before the trial judge that its copyright had been infringed by the reproduction of GELETE and the making of the Cinematograph film of Okwe Dike and the broadcast of same on the television.

Learned counsel further submitted that the argument of the appellants that it financed the production of ”GELETE” does not accord with reason and sound knowledge as it is indisputable that the 1st respondent possessed full copyright in ”GELETE” so shown by the fact that it was the author and creator of ”GELETE”.

The learned trial judge was therefore right in compensating the 1st respondent for the loss it suffered for the harm done it by the appellant by infringing its interest in ”GELETE”. See: Odiba vs. Atege (1988) 9 NWLR (pt 566) 370 at 372 Ratio i. Learned counsel further submitted that on the award of damages of N1,000,000.00 (One Million Naira) the appellants argument that the learned trial judge applied a wrong principle of law to arrive at decision is misconceived and not in accordance with sound legal reasoning and judicial authorities in this regard. See: The pronouncement of the Supreme Court on the power of court to award less but award less but not more than what is claimed. Metal Const. (W.A.) Ltd vs. Aboderin (1998) 8 NWLR (pt 569) 538 at 541 Ration 6.

The resolution of this court on Issue No. 1 of the appellants’ brief of argument classifying the entire judgment of the trial court as fallen short of the standard of Every Good Judgment in law has a direct effect on the resolution of the Issues No. 2 and 3 of the appellants, and Issues No. 3 and 4 of the respondent.

The judgment of a court is one single body, and the entire superstructure had been found to be defective by this court, in effect goes with everything contained therein. The issue of whether the award of the compensation of N1,000,000.00 (One Million Naira) to the 1st respondent was appropriate or not is swept away by the defect of the entire judgment as earlier on decided by this court.

I only need to add that the record before the court did not show that, the award of damages done by the trial court was made in recourse to any law on the subject. It was arbitrarily done by the trial judge, and thus capable being set aside. Issues No. 2 and 3, resolved in favour of the appellants and against the respondent.

Having resolved all the three (3) issues in this appeal in favour of the appellants and against the respondent, the appeal is meritorious and is hereby allowed by this court.

The judgment of Okechukwu J. Okeke, J, of the Federal High Court, Abuja Judicial Division, in Suit No. FHC/L/CS/1212/95 delivered on the 27th of September, 2002 is hereby set aside by this court.

No order as to costs.

HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the erudite judgment just delivered by my learned brother SIDI DAUDA BAGA, JCA and I am in complete agreement with his reasoning and conclusion that the appeal be allowed. I will add a few words by way of emphasis.

The work of dispensation of justice on a daily basis is no doubt an arduous one. However, those who have sworn to an oath to dispense justice must do so not only without fear or favour but with utmost dedication to duty and the impetus to do the job right.

I have read the judgment of the trial Court and there is no doubt that the two and a half page judgment” did not in any way contain the essential features of a valid judgment. None of the issues for determination were examined or opinion rendered on them. It was as if the judge used the rule of the thumb to arrive at the decision.

A judgment must examine the issues, consider briefly the arguments of counsel and be based on any of the principles of common law, statute law or even legal or judicial authorities. Where the issue is a recondite point of law, the ingenious reasoning of the learned trial judge based on any of the above principles even without any precedent would suffice.

After all most of the locus classicus on which the current legal principles now trite were based are the original reasoning of erudite judges who applied the law to the situation at hand. See Rabiatu Adebayo & Ors, Vs Rasheed Shogo (2005) 2 SCNJ 60.

Judgments are not supposed to be capriciously arrived at, but must be a veritable reflection of sound reasoning and conclusion. In the circumstances, the judgment of the trial Court cannot stand. On that basis alone, the judgment of the trial Court is hereby set aside. Appeal allowed. I abide by all the consequential orders made in the lead judgment.

JOHN INYANG OKORO, J.C.A.: I read in draft the Judgment of my learned brother, Bage, JCA just delivered and I am in complete agreement that this appeal has merit and ought to be allowed. My learned brother has effectively resolved all the three issues submitted for the determination of this appeal and I do hereby adopt both his reasoning and conclusions as mine. I however wish to add that a good Judgment has to show clearly who the parties are, the nature of the action, the issues in controversy, a summary of the evidence of each party, a resolution of the issue or issues in controversy and the verdict of the court together with consequential order or orders as the case may be. see Michika Local Government v. National Population Commission (1998) 11 N.W.L.R. (Pt.573) 201.

In the instant appeal, the Judgment of the learned trial Judge appealed against is bereft of any feature that can be described as constituting a valid Judgment. The learned trial Judge spent more than 90% of the 2 pages of the Judgment giving history of the case and thereafter entered Judgment for the Plaintiff. This is not what a Judgment should be. The basis for the award of the N1,000,000.00 (one million naira) damages is not there. Accordingly, I join my learned brother, Bage, JCA in allowing this appeal and setting aside the Judgment of Okeke, J., of the Federal High Court delivered on 27th September, 2002. I also make no orders as to costs.

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