Visafone Communication Limited v. Musical Copyright Society Nigeria
Court of Appeal
Judgement Delivered on Friday, July 1, 2011
Citation: 54 NIPJD [CA. 2011] 494/2009
Suit No. CA/L/494/09 Jurisdiction: Nigeria
CLARA BATA OGUNBIYI, J.C.A.
ADAMU JAURO, J.C.A. (Delivering the Lead Judgement)
RITA NOSAKHARE PEMU, J.C.A.
VISAFONE COMMUNICATIONS LIMITED……………………………………………………………….Appellants
1. MUSICAL COPYRIGHT SOCIETY NIGERIA (LTD/GTE)
2. MECHANICAL-COPYRIGHT PROTECTION SOCIETY LIMITED……………………………………Respondents
Determination by a Court, Appeal — The court considered whether the trial judge’s statement that Section 17 of the Copyright Act seems to be of “doubtful constitutional validity” is a determination by that court and therefore a decision capable of being appealed against.
The appeal herein emanated from the proceedings of 6th April, 2009 before the Federal High Court Lagos, coram, Archibong. J.
The facts culminating in this appeal are straightforward and simple, a concise summary is hereby made as follows. The respondents as plaintiffs instituted the action in the court below by writ of summons dated 26th May, 2008, alleging infringement of their copyright. The respondents prayed the court in their statement of claim of same date, for a “declaration that the public use and authoritation of the musical works “La Bamba, Ijoya, and Ninja Bike” by the defendant without the knowledge, licence and or consent of the plaintiffs is wrong and unlawful.” The aforementioned relief was followed by injunctive reliefs and damages.
After entering appearance and filing its statement of defence, the appellant filed a notice of preliminary objection dated 28th October, 2008. The preliminary objection sought for the dismissal/striking out of the entire suit pursuant to Section 17 and 39 of the Copyright Act, Cap.C28 Laws of the Federation of Nigeria 2004.
The objection was premised on the ground that the “Plaintiffs lack the requisite locus standi to institute the action” having been operating as collecting societies without the licence or approval of the Nigerian Copyright Commission. On 6th April, 2009 when the appellants counsel had commenced his submissions on the objection, the learned trial judge interjected as follows on page 107 of the record:
“…will direct that we proceed to trial because the regulatory provisions cited in the Copyright Act seem to me to be of doubtful constitutional validity. But this is not a decision or Ruling on same. Rather it is a direction that final addresses assuming the Plaintiff sufficiently states it case will address the constitutional validity or otherwise of Section 17 of the Copyright Act and any other provisions of the Act which restrict or constrain the rights of proprietory owner to protect and enforce same.
23rd and 24th June, 2009 for trial.
Hon . Justice C.E. Archibong
Dissatisfied with the aforementioned direction or order of the trial court, the appellant appealed against same vide a notice of appeal dated 20th April, 2009 anchored on three grounds of appeal. The said grounds of appeal and their particulars are hereby reproduced in verbatim, as further reference will be made to them in the course of this judgment.
“GROUND OF APPEAL
The trial Court erred in law when it failed to consider and pronounce on the issues submitted to it for its determination in the Appellant’s Notice of Preliminary Objection dated 28 October, 2008, (“PO”) relating to the locus standi of the Respondents to institute the Suit”.
i. The Appellant, by its PO challenged the competence of the Respondents to institute the action having not obtained the requisite licence pursuant to Sections 17 and 39 of the Copyright, Cap C28, Laws of the Federation of Nigeria, 2004 (“the Copyright Act”).
ii. The PO came up for hearing on 06 April, 2009 and in the course of Appellant’s submissions on same, before the Respondents’ response, the Learned trial Judge interjected and expressed his unwillingness to pronounce on the PO one way or the other, on the ground that the said Section 17 of the Copyright Act is of doubtful constitutionality.
iii. It is trite, as further expounded in Ikenzor v. Ikeozor (1994) 5 NWLR (pt.346) 609 at 622-623 and Obomhense v. Erhahon (1993) 7 NWLR (Pt.303) 22 at 45 that a court is duty bound to consider and pronounce on an application properly placed before it, one way or the other.
The Learned trial Judge erred in law when he held that section 17 of the copyright Act seems to be of “doubtful constitutional validity,” in respect of its regulatory requirement for licencing for any collecting society before it can properly act as such.
Particulars or Error
i. Section 17 of the Copyright Act is merely regulatory, requiring any person operating as a collecting society to be licenced by Nigerian Copyright Commission for purposes of instituting an action for copyright infringement.
ii. Like every other requirement of Law, Section 17 of the Copyright Act is a statutory condition precedent, the fulfillment of which vests the requisite power on a collecting society to commence copyright infringement action.
iii. Section 17 does not deprive or prohibit a collecting society of the right to collect but merely regulate same for effective and proper protection of the copyright and its owner.
The Learned Trial Judge erred in law by depriving the Appellant the right to fair hearing when he refused to hear the substance of Appellant’s PO and instead ordered the matter to proceed to trial.
Particulars or Error
1. It is trite law that fair hearing includes affording a party an opportunity of fully presenting his case to the best of his ability before a Court of Law.
2. The Appellant’s Counsel was cut-off halfway on its submissions on the PO by the learned trial judge, who refused to hear any further submissions on the issue and directed the matter to proceed to trial.
3. It is also trite law as held in various decisions of the Supreme Court that where a point of law raised by a party is capable of disposing of a matter at the preliminary stage, advantage ought to be taken of the facilities afforded by the Rules of Court to dispose of the matter without the necessity of proceeding to full trial.
4. Appellant hereby adopts in its entirety, all the particulars contained in Ground One hereof, as if the same were reproduced verbatim hereat”.
In line with the Rules of Court, parties filed and exchanged their respective briefs of argument. The appellant’s brief of argument was filed on 23rd September, 2009 while the reply brief though filed 10th March, 2010 was deemed properly filed on 6th December, 2010. The respondents on their part filed a notice of preliminary objection and the respondent’s brief on 22nd October, 2009. On the date of hearing the appeal, Mr. R. U. Ezeani leading, O.F. Ukomadu Esq for the respondents, started by arguing the preliminary objection and adopting the arguments in respect of same on pages 5 to 8 of the respondent’s brief. Learned counsel cited the case of Oduke v. Achebe (2008) 1 NWLR (Pt.1067) 40 as an additional authority and urged the court to strike out the entire appeal on the grounds set out in the preliminary objection. In response to the preliminary objection Mr. M. O. Liadi leading A. Sulaiman and B. Hassan for the appellant, adopted and relied on the arguments contained on pages 3 to 16 of the appellant’s reply brief. Learned counsel urged the court to dismiss to preliminary objection.
As for the main appeal, Mr. Liadi adopted and relied on the appellant’s brief of argument and the reply brief. Learned counsel stated that issue one was distilled from grounds 1 and 3, while issue two from ground two. Learned counsel made reference to the case of Compact Disc Technologies Ltd & Ors v. Musical Copyright Society of Nigeria (unreported) No, CA/L/787/08 of 17th March, 2010 as an additional authority for page 25 of the brief. Learned counsel urged the court to allow the appeal set aside the ruling of the trial court and make a determination of the preliminary objection in the lower court pursuant to Section 15 of the Court of Appeal Act. Mr. Ezeani for the respondents adopted and relied on the arguments contained on pages 8 to 15 of the respondents brief. Learned counsel stated that two issues had been distilled for determination and submitted that the additional authority cited by the appellant has no relevance to this appeal. Learned counsel urged the court to dismiss the appeal.
A consideration will now be made of the preliminary objection. The notice of preliminary objection anchored the objection on three grounds. The said grounds and their particulars are hereby reproduced:
1. Ground one
“Grounds 1, 2 & 3 of the grounds of appeal are grounds of fact or mixed law and fact for which leave of the court or that of the lower court is required. No leave was sought or obtained and so the said grounds are incompetent and liable to be struck out.
(a) Ground 1 of the grounds of appeal complains that the trial court failed to consider and pronounce on issues submitted to it for determination with respect to Respondent’s locus standi.
(b) These issues relate to the following facts:
(i) whether the respondents are carrying on the business of negotiating and granting of copyright licences in Nigeria and the United Kingdom.
(ii) whether the respondents collect and distribute royalties in respect of copyright works within their respective territories.
(iii) whether the respondents have the approval and authority of the Nigerian Copyright Commission to negotiate and grant licences and/or collect and distribute royalties in respect of copyright works within Nigeria.
(c) In proof of these facts, Appellant filed a 7 paragraph affidavit and 4 exhibits.
(d) Respondents’ answer to this preliminary objection by the Appellant was to file a counter affidavit dated 13/1/09 to say, inter alia, in paragraph 4(d) thereof that they do not need the approval or licence of the Nigerian Copyright Commission (NCC).
(e) Consequently there arose an issue of mixed fact and law to be tried: whether or not the Respondents require the licence of the NCC. Thus even if we concede to the Appellant, which we do not, its argument in paragraph 126.96.36.199 to 188.8.131.52 at pages 21-22 of his brief that respondent did not deny that they negotiated licences or collected and distributed royalties, the question of fact whether, on a proper reading of the Copyright Act and any other applicable law, the respondents required the licence of the NCC to do these things still remained.
(f) By virtue of Particular 2 of the said Ground 1, this court has to decide the question of fact whether the learned trial judge’…interjected and expressed on unwillingness to pronounce ort the PO one way or the other…’
(g) Ground 2 of the Notice of Appeal also requires ultimately, a consideration of facts because Section 17 of the Copyright Act envisages several factual situation and circumstances before its provisions can be called in aid. For instance, it requires proof that the person sought to be restrained represents more than fifty copyright owners in any category of works.
(h) By particular No. 4 of Ground 3 of the Notice of Appeal, Appellant incorporates all the particulars of Ground 1 into Ground 3. Consequently that ground suffers the same fate as Ground 1 and all we said in paragraph 3.1.2. to 3.1.7 applies here.
2. GROUND 2
Ground 2 of the Notice of Appeal does not arise from any appealable decision. Thus ground 2 in the appellant’s Notice of Appeal is incompetent.
(i) The statement of the learned trial judge that … the regulatory provisions cited in the Copyright Act seem to me to be of doubtful constitutional validity…’ is not a decision within the meaning of S.81 of the 1999 Constitution.
(ii) The statement is merely the reason for the decision to adjourn the argument of the preliminary objection till the address stage.
(iii) In Amobi v Nzegwu (2005) 12 NWLR (Pt.938) CA 120 this Honourable court held that it is not every view expressed by the court that is appealable and that any ground of appeal which is based on opinions are incompetent.
3. GROUND 3
Issues 1 & 2 in the Appellant’s Brief not being based on any competent ground of appeal are incompetent and ought to be struck out.
We repeat all the particulars in grounds 1 & 2 above”.
Learned counsel for the respondents proferred arguments in support of each ground. On the first ground as to the fatality of the absence of leave to appeal, learned counsel started by saying that the decision appealed against was an interlocutory decision as it did not finally decide the right of the parties. In support, reference was made to the case of Akinsanya v. UBA (1986) 3 NWLR (Pt.35) 273.
Learned counsel submitted that it is trite that leave of this court or the lower court is necessary where an appeal against interlocutory decision is based on grounds of fact or mixed law and fact. In support, reference was made to Sections 241 and 242 of the 1999 Constitution, Section 14 of the Court of Appeal Act 2004 and the case of UBN plc v. Sogunro (2006) 16 NWLR (Pt.1006) SC.504. Learned counsel stated that a ground of appeal complaining of failure of the lower court to consider a matter (even of law) which ultimately involves an examination of facts is a ground of mixed law and fact. In support, reference was made to the cases of Welli v. Okechukwu (1985) 2 NWLR (Pt.5) SC.63 and Odukwe v. Achebe (2008) 1 NWR (Pt.1067) 40. Learned counsel submitted that any complaint in a ground of appeal as to exercise of discretion by the trial judge is also a ground of mixed law and fact.
Learned counsel argued that the grounds of appeal are also complaining against the exercise of discretion by the trial judge in staying and adjourning arguments on the preliminary objection to address stage. Learned counsel contended that all the grounds of appeal in this appeal require an examination of facts thereby making them grounds of mixed law and fact and as no leave was obtained they are incompetent and liable to be struck out. In support, reference was made to the case of Ogbechie v. Onochie (1986) 2 NWLR (pt.23) 484 SC.
On the second ground, learned counsel submitted that the remark that “Section 17 seems to be of doubtful constitutional validity” is a passing remark by the learned trial judge, which has not determined the constitutional validity of Section 17. Learned counsel made reference to Section 318 of the 1999 constitution, which counsel contended defined a decision to mean ‘any determination by a court’. Learned counsel argued that it is not every remark by a judge that amounts to an appealable decision. In support, reference was made to Amobi v. Nzegwu (2005) 12 NWLR (Pt.938) 120. Bothia Maritime Inc. v. Fareast Mercantile Co. Ltd (2001) 9 NWLR (Pt.719) SC 572. Reg. Trustees of Pentecostal Assemblies of the World v. Reg. Trustees of African Apostolic Christ Church (2002) 15 NWLR (Pt.790 CA 424 at 450. Isulight (Nig) Ltd v. Jackson (2005) 11 NWLR (Pt. 937) 631. Learned counsel argued that an appellate court is only concerned with the decision of the court below not the reasons given for the decision. In support, reference was made to Hillary Farms Ltd y. M/V “Mahtra” (2007)14 NWLR (Pt 1054) SC 210. Learned counsel urged the court to hold that ground 2 of the notice of appeal is not based on any decision of the trial judge.
On the last ground that appellant’s issues are not based on any competent ground, learned counsel submitted that as there is no competent ground of appeal, the notice of appeal dated 20th April, 2009 is therefore bad. In support, reference was made to Nwabueze v. Nworah (2005) 8 NWLR (Pt 926) CA 1. Learned counsel argued that any issue distilled from an incompetent ground of appeal is incurably bad and ought to be struck out. In support reference was made to Amadi v. Orisakwe (1997) 7 NWLR (Pt.511) C4 161 at 170D. Nwabueze v. Nwonah (supra). Learned counsel contended that the upshot of the objection is that the appellant has not satisfied the mandatory precondition for the appeal. In support, reference made to Madukolu v.Nkemdilim (1962) 2 SC NLR 341. In concluding learned counsel urged the court to strike out the appeal.
In response to the objection and by way of introduction the learned counsel for the appellant stated that the objection lacked basis and merit and urged the court to dismiss same. Learned counsel submitted that the appellant’s grounds of appeal are purely grounds of law and therefore require no leave of this court as contended by the respondents. As to what amounts to a ground of law as distinct from grounds of mixed law and fact, learned counsel made reference to the following cases: Nwadike v. Ibekwe (1987) 4 NWLR (pt.67) 718 at 733, Chief of Defence Staff v. Adhekegba (2009) 13 NWLR (Pt.1158) 332 at 357. Anoghalu y. Onaefosi (1999) 13 NWLR (8t.634) 297 at 308. Metal Construction-(West Africa) Ltd v. D. A. Migliore & Ors (1990) 1 NWLR (Pt.126) 299.
Learned counsel reproduced the grounds of appeal in verbatim and submitted that the grounds are grounds of law, as ground 1 and 3 complained of the failure of the trial court to consider and pronounce on the respondent’s locus standi. In support, further reference was made to the cases of Nwadike v. Ibekwe (supra) and Chief of Defence Staff v. Adhekegba (supra). Learned counsel stated that ground 3 relates to the construction of statutory provisions, to wit Section 17 and 39 of the Copyright Act. In support, further reference was made to the cases of Anoghalu v. Oraelosi (supra) and Metal Construction (West Africa) Ltd v. D. A. Migliore & Ors (supra). Learned counsel submitted that none of the grounds complained of the lower courts evaluation or finding of facts, as the court did not make any. Learned counsel argued that the particulars of error are on settled facts before the court and the respondents having failed to join issues with appellants in their counter affidavit they are estopped from doing so now. In support, reference was made to Section 151 of the Evidence Act and the cases of Obayan v. Unilorin (2005) 15 NWLR (Pt.947) 123 at 146-147 Iloabuchie v. Iloabuchie (2005) 13 NWLR 943 695 at 717-718. Learned counsel contended that the facts stated on pages 3 to 4 of the respondent’s brief are settled and admitted facts.
Learned counsel made reference to Section 17(b) at the Copyright Act and submitted that the “or” used in the section is disjunctive not conjunctive. In support, reference was made to page 1095 of Blacks law Dictionary, 6th edition and the case of Inakoju v. Adeleke (2002) 4 NWLR (Pt.1025) 427 at 612. Learned counsel contended that the cases of Welli v. Okechukwu (supra) and UBN, v. Sogunro (supra) are inapplicable to the case at hand. In the instant case learned counsel contended that the appellant is challenging the abdication of duty by the lower court. In support, reference was made to the case of Baido v. INEC (2008) 12 NWLR (Pt.1101) 379 at 397-398. Learned counsel argued that the appellant’s objection before the lower court is whether or not the respondents require licence from the Copyright Commission before it can sue pursuant to Sections 17 and 39 of the Copyright Act.
Learned counsel, urged the court to hold that the grounds are grounds of law and discountenance the objection.
On the objection to ground 2, learned counsel contended that it arose out of an appealable decision. Learned counsel made reference to Section 318 of the 1999 constitution as to the meaning of a “decision”. Learned counsel argued that the statement of the trial judge in the context of what transpired on 6th April, 2009, amounted to a determination or an appealable decision. Reference was made to the case of Ekwunife v. Ngene (2000) 2 NWLR (Pt.646) 650 at 667-668. Learned counsel argued that the statement is not an ordinary remark as it was based on it that the efficacy of their objection was eroded and the respondents were donated locus standi on a platter of gold. In support of the submission that it is a decision not a remark, learned counsel made reference to the case of Re: Shyllon (1994) 6 NWLR (Pt 351) 735. Learned counsel contended that the statement is an appealable decision as it was based on it that the trial judge directed parties to proceed to trial.
Learned counsel posited that the case of Ameobi v. Nzegwu (supra) and other cases relied by the respondent are inapplicable to the instant appeal. In concluding, learned counsel urged the court to dismiss the preliminary objection as lacking in merit.
In resolving the preliminary objection, I deem it necessary and expedient by way of prologue to start from the definition of an appeal. An appeal is an invitation to a superior court to review the decision of an inferior court and find out whether on the facts placed before it and applying the relevant and applicable law the inferior court came to a right or wrong decision. It is generally regarded as a continuation of the original case and not an inception of a new case. See Ponnamma v. Arumogun (1905) AC 390. Oredoyin v. Orowolo (1989) 4 NWLR (Pt.114) 172. The notice of appeal which animates and sustains the appeal contains grounds of appeal.
A ground of appeal is the complaint or error of law or fact alleged by the appellant as a defect in a judgment appealed against and relied upon to set aside the judgment. It is the totality of the reasons why the decision complained of is considered wrong by the party appealing.
The purpose of grounds of appeal is to give notice of the errors complained of. See Bhojsons Plc. v. Danioel Kalio (2006) 5 NWLR (pt.973) 330, Metal Construction W.A. Ltd v. Migliore (supra), National Investment and Properties Ltd v. Thompson Organisation (1969) NMLR 99. Ehinlawo v. Oke (2008) 16 NWLR (Pt.1113) 357. A ground of appeal may either be-of law, fact or mixed law and fact. In order to determine the nature of a ground of appeal, one must look closely at the main ground together with the particulars thereof to see whether it is a ground of law, fact or mixed law and fact. A ground of law needs no leave but a ground of fact or mixed law and fact requires leave in order to make it competent. See Sections 241, 242 of the 1999 Constitution and Section 24 of the Court of Appeal Act 2004. See Poppola v. Adeyemo. (1992) 8 NWLR (Pt 257) 1 SC. Abidoye v. Alawode (2001) 13 WRN 71 SC. It is therefore necessary to understand the yard stick for the classification of grounds of appeal in order to determine to which category the grounds in the instant appeal fall into. The important consideration in determining the nature of a ground of appeal is not the form of the ground but rather the question it raises. The determination of a ground of fact is always easy, however the distinction becomes more difficult and thin, when it involves a point of law and mixed law and facts. See Anukam v. Anukam (2008) 5 NWLR (pt 1081) 455. Anambra State (2009) 10 NWLR (Pt.1148) 182.
General guidelines have been made over the years as to the modalities of determining the nature of a ground of appeal. A question of law or ground of law can be said to have three meanings, namely:
(a) a question the court is bound to answer in accordance with a rule of law, the process of answering of which question the court would exercise no discretion in whatever manner; it is a question predetermined and authoritatively answered by the law;
(b) the second meaning is as to what the law is; an appeal in which the question for argument and determination is what the true rule of law is on a certain matter which question usually arises out of the uncertainty of the law;
(c) the third meaning in respect of those questions which are committed to and answered by the authority which normally answers questions of law only; that is any question which is within the province of the Judge instead of o jury is o question of law, even though in actual sense it is a question of fact. Within this meaning can be identified the interpretation of documents, which is often a question of fact, but is within the province of the Judge.”
A question of fact on the other hand may mean any of the following:
(a) “a question which is not determined by a rule of law;
(b) any question, except the question as to what the law is; and
(c) any question, that is facts upon which the award of damages to the respondent was based: such a ground is of mixed law and fact;
(d) a ground which challenges the findings of facts made by the trial Court or involves issues of law and fact;
(e) where the evaluation of facts established by the trial Court before the law in respect thereof is applied is under attack or question, the ground of appeals one of mixed law and fact;
(f) any question to be answered by the jury rather than the Judge is a question of fact”.
See Anghalu v. Oraelosi (1999) 13 NWLR (Pt.634) 297, Ugboaja v. Akitoye-Sowemimo (2008) 16 NWLR (Pt.1113) 278.
A ground of appeal is said to involve a question of law alone, where in answering the question raised by the ground, the appellate court can determine the issue on the admitted and uncontroversial facts without going beyond a direct application of the legal principles. A ground of appeal that calls for the interpretation of the law is aground of law. See FBN Plc v. Abraham, (2008) 18 NWLR (Pt.118) 172, Ifediorah v. Ume (1988) 2 NWLR (Pt.74) 5, Rabiu v. State (1981) 2 NCLR 293. Where an appellate court is called upon to investigate some facts upon which a claim or some claims are granted under a ground such a ground is of mixed law and fact. The criteria therefore for distinguishing a ground of law from fact or mixed law and fact is the need for appellate court to further resolve disputed facts. Where the facts are settled or admitted, then the ground is on point of law. On the other hand a ground challenging the exercise of discretion is that of mixed law and facts. see FBN Plc v. Abraham (supra), Ogbeche v. Onchie (supra), Alhaji Ibrahim Atavi & Oru v. Mil. Gov. Plateau State & Ors (2002) NWLR (pt.89) 1168 at 1185, Ikem v. Nezianya (2002) FWLR (Pt.99) 1088 at 1098.
The contention of the respondents is to the effect that all the three grounds of appeal are either of fact or mixed law and fact, hence requiring leave. The respondents anchored their arguments on the fact that if one considers the particulars of the grounds, issues of facts are really raised. The appellants on the other hand, argued to the contrary, contending that none of the grounds challenged evaluation of evidence. Furthermore the appellants also contended that a complaint that the lower court abdicated its duty in pronouncing on issues placed before it, as in ground one is a question of law.
Ground one complains of failure of the trial court to pronounce on the preliminary objection of the appellants. Ordinarily the ground as it looks, since it raised the issue of failure to pronounce on issues presented to the lower court, it raises a question of law. see Nwadike v. Ibekwe (supra). Chief of Defence staff v. Adhekegba (supra). Aluko v. spectrum Books Ltd (2002) FWLR (pt.86) 540 at 543.
However the particulars of the ground veered off and landed into facts, thereby making facts play a pivotal role in answering the question raised in the ground. A community reading of the ground and its particulars will place it in the realm of mixed law and facts. My lord, Tobi, JSC commented in situations of this nature in Kashadadi v. Noma (2007) 13 NWLR (Pt.1052) 510 at 522. Hear my noble lord:
“In determining whether a ground of appeal is one of fact, mixed law and facts simpliciter, the court should go further than the ground of appeal as couched by the appellant and prove down to the particulars of error numerically tabulated thereunder. This is because it is the total package of the ground of appeal and the particulars therein that complete the exercise leading to the conclusion whether a ground of appeal is one of exclusive law or one of mixed law and fact or one of facts simpliciter. It. is the experience in quite a number of cases that while the ground of appeal deals with pure and unadulterated law, the particulars that edify the grounds move to the stream of mixed law fact; and in some cases to facts and facts only.”
Consequent upon the foregoing, ground one is therefore of mixed law and fact. Ground 2 complains of the statement made by the trial judge as to Section 17 of the Copyright Act. The particulars also veered into facts, the same virus that afflicted ground one has contaminated ground two. I adopt the resolution made in ground one and hold that ground two is also of mixed law and fact. Grounds 1 and 2 having been declared grounds of mixed law and fact, require leave of court to be competent. There being no leave of court sought and obtained, they are hereby declared incompetent.
Ground three on the other hand complains of denying the appellant fair hearing, and all the particulars of ground one had been adopted as particular four in ground three. The ground ordinarily becomes of mixed law and fact. However fair hearing falls under fundamental human right as enshrined in Chapter IV of the 1999 Constitution.
Section 241. (1) (d) provides thus:
241 (1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases –
(d) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be, contravened in relation to any person:”
In the instant case as the ground complains of the denial of fair hearing, it falls within areas covered by Chapter IV of the constitution, thereby bringing it squarely within the provisions of Section 241 (1)(d) referred to above. Based on the foregoing a ground of appeal complaining of the denial of fair hearing requires no leave, even where it is on mixed law and fact. See Bamigboye v. University of Ilorin (1999) 10 NWLR (Pt.622) 290 at 324B- D. Consequently ground three is therefore competent. However the appellants issue number one was distilled from grounds one and three of the grounds of appeal.
It is trite that where an issue for determination is supported by both competent and incompetent grounds of appeal, it is not the function of the court to carry out a surgical operation in order to sift arguments an competent grounds from those on incompetent ones. Thus, where a ground of appeal is incompetent and argued with a competent ground in an issue it has the effect of rendering the issue for determination incompetent. See Korede v. Adedoku (2001) 7 NSCOR 327 at 339. Avalosu v. Agu (1998) 1 NWLR (Pt.532) 129. Honika Sawmill (Nig) Ltd v. Hoff (1994) 2 NWLR (pt 326 252. Kadzi Int’l Ltd v. Kano Tannery Co. Ltd (2004) 4 (Pt.1126) 524. Consequent upon the foregoing, issue number one has been rendered incompetent and is hereby struck out. Issue two was distilled from ground of appeal number two, which had earlier been declared incompetent. Issue two having been distilled from an incompetent ground is automatically incompetent and is hereby struck out. See APGA v. Ohakim (2009) 4 NWLR (Pt.1165) 576. Nwabueze v. Nwonah (Supra). Q.B.N.R. Ltd v. Trans Int’l Bank Ltd (2008) 18 NWLR (Pt.1119) 388.
Having declared the two issues for determination incompetent, it will amount to a needless academic exercise to consider the second ground of the objection to the effect that ground two is not based on an appealable decision. However this court being a penultimate court, I deemed it worthwhile to consider same. The second ground of the objection challenges ground two of the ground of appeal to the effect of that it was not based on appealable decision. The question that follows is: What is a decision? Section 318(1) of the 1999 Constitution defines the term as follows:
“decision” means, in relation to a court, any determination of that court and includes judgment, decree, order, conviction, sentence or recommendation.”
The grounds of appeal had earlier been reproduced in this judgment, but for the purposes of emphasis ground two shorn of its particulars, is further reproduced:
The Learned Trial Judge erred in law when he held that Section 17 of the Copyright Act seems to be of “doubtful constitutional validity”, in respect of its regulatory requirement for licencing for any collecting society before it can properly act as such.
In order to have a more comprehensive overview, the proceedings of 6th April, 2009 in the lower court where the statement under attack in ground two was made is further reproduced:
“I will direct that we proceed to trial because the regulatory provisions cited in the Copyright Act seem to me to be of doubtful constitutional validity. But this is not a decision or Ruling on some. Rather it is a direction that final addresses assuming the Plaintiff sufficiently states it case will address the constitutional validity or otherwise of Section 17 of the Copyright Act and any other provisions of the Act which restrict or constrain the rights of proprietary owner to protect and enforce same 23rd and 24th June, 2009 for trial”.
From the definition of a decision in Section 318(1) of the Constitution and the use of the word “includes” it cannot be expressly restricted to the words mentioned in the section: It should include all forms of conclusions and any determination by the court apart from those mentioned in the section as a decision and appealable.
The crucial question to ask is whether what the trial judge said about Section 17 of the Copyright Act is a determination by that court and therefore a decision capable of being appealed against? In throwing more light on the meaning of ‘decision’ and ‘determination’, Ademola CJN in Automatic Telephone and Electric Co. Ltd v. Fed. Military Govt. of Nigeria (1963) 1 All NLR 429 at 423 had this to say:
“We have been referred to the Short Oxford Dictionary for the meaning of determination. It means ‘a bringing or coming to an end, the mental action of coming to a decision,’ or ‘the resolving of a question’.”
In Oaten v. Auty (1919) 2 KB 278 at 288, the word ‘determine’ was interpreted by Bray, J to mean “make an end of a matter” See also Deduwa v. Okorodudu (1976) 1 NMLR 236. Blacks Law Diction dry, 8th edition edited by Bryan A. Garner at Page 480, defined ‘determination’ as a final decision by a court or administrative agency”.
The crucial question to be asked is whether the learned trial judge has made any final decision or determination as to the constitutionality of Section 17 of the copyright Act. Hear the learned trial judge once more:
“I will direct that we proceed to trial because the regulatory provisions cited in the Copyright Act seem to me to be of doubtful constitutional validity. But this is not a decision or Ruling on same. Rather it is a direction that final addresses assuming the Plaintiff sufficiently states it case will address the constitutional validity or otherwise of Section 17 of the Copyright Act…”
In the context of the above, the learned trial judge has not determined the constitutionality of Section 17 or any other section of the Copyright Act. The statement of the learned trial judge can at best qualify as a passing remark. This is so because it was made out of the blues not based on any issue before the court for hearing and determination.
Though an appealable decision could even be a pronouncement on an issue not before the court, as courts do reach decisions suo motu which are subject to appeal. See ANPP v. Haruna (2003) 14 NWLR (Pt.841) 546 at 565G. In the instant case the statement made has not fully and finally determined the constitutionality of any Section of the Copyright Act. Being a passing remark, it is therefore not an appealable decision. See Bothia Maritime Inc. v. Fareast Merchantile Co. Ltd (2001) 9 NWLR (Pt.719) 572 at 590. Re: Shyllon (supra). To amount to a ‘decision’ within the meaning of section 318(1) of the Constitution, there must be a determination by the court which settles a point in favour and against the parties. See United Agro Ventures Ltd v. F.C.M.B Ltd (1998) 4 NWLR (Pt.547) 546. This ground of the objection also succeeds.
In view of the foregoing the preliminary objection dated 8th October, 2009 and filed 22nd October, 2009 therefore succeeds. As a consequence of the preliminary objection the two issues for determination having been declared incompetent are accordingly struck out, thereby leaving the appeal bare and impotent. Consequent upon the foregoing, the appeal number CA/L/494/09 has been rendered incompetent and is hereby struck out. There will be no order as to costs.
CLARA BATA OGUNBIYI, J.C.A.: I have read in draft the lead judgment just delivered by my brother Adamu Jauro JCA. He has adequately dealt with the issues of the preliminary objections raised and which I also endorse his very well thought out reasonings and conclusions arrived thereat. I have nothing more useful to add but adopt his judgment as mine in the same terms of the orders made therein and inclusive of costs.
RITA NOSAKHARE PEMU, J.C.A.: I have been afforded the privilege of reading before now the lead Judgment of my learned brother Adamu Jauro JCA,
I agree with the reasoning and conclusions arrived at in the Judgment, I also adopt the consequential order made that the Preliminary Objection dated 8th of October, 2009 and filed on the 22nd of October, 2009 succeeds, while the Appeal is hereby struck out. There shall be no order as to costs.
Appearances: M. O. Liadi (with A. Sulaiman and B. Hassan) for the Appellant
R. U. Ezeani Esq with O. F. Ukomadu for the Respondents