Legalpedia Electronic Citation: LER SC.336/2008
APPEAL NO: SC.336/2008
AREAS OF LAW: APPEAL, COURT, INTELLECTUAL PROPERTY LAW, INTERPRETATION OF STATUTE, LEGAL PRACTITIONER, LOCUS STANDI, PRACTICE AND PROCEDURE, STATUTE
SUMMARY OF FACTS:
The Plaintiff/Respondent at the trial Federal High Court, Lagos division, commenced a suit as a party vested with the right “as owner; assignee and exclusive licensee of Alhaji Fatai Olowonyo’s copyright in the musical work under the title “OJUMO RE”, against the Defendant/Appellant, for alleged infringement of the copyright in the said work. The Defendant/Appellant raised a preliminary objection, challenging the jurisdiction of the trial court, on grounds that the Plaintiff/Respondent lacks the locus standi to institute the action. The trial court agreed with the above preliminary objection and struck out the suit of the Respondent. The Respondent, positing that it did not sue as a Collecting Society, but “as Owner, assignee and exclusive licensee,” appealed to the Court of Appeal, Lagos Division. The Lower Court allowed the appeal and set aside the decision of the trial court; that the Respondent not being a Collecting Society lacked locus standi to institute the action. This further appeal is against the judgment of the lower court on grounds that the Court of Appeal in arriving at its decision omitted a very important part of Section 15A of the Copyright Act, 1998 as amended.
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ISSUE FOR DETERMINATION:
ADMITTED FACTS – WHETHER ADMITTED FACTS NEED FURTHER PROOF
“It is trite that facts admitted, needing no further proof, are taken as established.” PER E. EKO, J.S.C.
LOCUS STANDI – CONCEPT OF LOCUS STANDI
“The learned trial Judge, correctly in my view, had stated locus standi is a matter of law. This Court stated so in Atoyebi v. Governor of Oyo State (1994) 5 NWLR (Pt.344) 290 at 310. I also agree with the learned trial Judge, on the authority of Thomas v. Olufosoye (1981) 3 NWLR (Pt. 13) 523 (S.C.); Adesanya v. The President (1981) 1 S.C.N.L.R 12; Quo v. Vadis Hotel & Restaurant Ltd v. Commissioner Of Lands (1973) 6 SC 71 at 82; Amadi v. Essien (1994) 7 NWLR (Pt. 354) 94 (C.A.) that locus standi connoting the capacity the Plaintiff has to commence an action or suit, is the personal interest, legal or equitable, the Plaintiff has in the subject matter of the suit which he alleges has been or is likely to be infringed.” PER E. EKO, J.S.C.
LOCUS STANDI- DETERMINANT OF LOCUS STANDI
“The main test or determinant of locus standi is whether the Plaintiff, from the pleadings, has disclosed sufficient interest in the subject matter of his suit? Once he disclosed, in the pleadings, his sufficient interest in the subject matter of the suit then he is, by law, entitled to sue.” PER E. EKO, J.S.C.
INTERPRETATION OF STATUTE – DUTY OF A COURT WHEN CALLED UPON TO INTERPRET A STATUTE
“I agree with the learned Appellant’s Counsel, on the authority of Olatunji v. F. R. N (2003) 3 NWLR (Pt. 807) 406; Tanarewa (Nig) Ltd v. Plastifarm Ltd (2003) 13 NWLR (Pt. 840) 355, that the Court, when called upon to interpret a statute is not permitted to do so by either putting a gloss on the provisions or removing words therefrom. The Court, not being a lawmaker, can neither add to nor deduct from the provisions of the statute. The Court will be acting ultra vires when in its interpretative function, it arrogates to itself the function of making a new statute, by the addition of and/or deleting from the existing provisions of the statute words not intended by the lawmaker. PER E. EKO, J.S.C.
LOCUS STANDI – WHAT THE COURT SHOULD CONSIDER IN THE DETERMINATION OF WHETHER OR NOT A PLAINTIFF HAS LOCUS STANDI
“A trial Judge, in order to ascertain whether the Plaintiff in the action has locus standi, has only to satisfy himself that the Statement of Claim does or does not disclose that a cause of action vests in him. In deciding the issue the trial Judge looks only into the statement of claim: Adefule v. Oyesile (1989) 5 N.W.LR 377 at 418; Adesokan v. Adegorolu (1997) 3 S.CNJ 1 at 15. Let me add, as it decided in Owodunni v. Registerred Trustees Of C.C.C. (2000) 10 N.W.L.R (Pt. 675) 315 at 338 and 357, that at this stage it is not necessary for the trial Judge to consider whether there is a genuine case on the merits. The determination of the question whether the Plaintiff has, or has not, disclosed his locus standi to institute his suit is quite distinct from the merits of the case.” PER E. EKO, J.S.C.
PRINCIPLE OF INTERPRETATION – DUTY OF COURTS IN THE INTERPRETATION OF COURT PROCESSES
“The same cannon or principle of interpretation the learned Appellant’s Counsel has invoked for interpretation of provisions also applies mutatis mutandis to interpretation of Court processes. It is simply, as Kutigi JSC (as he then was) stated in Kutoye v. Saraki (1994) 7 N.W.L.R (Pt. 357) 414: the duty of the Court is simply to interpret the words used. The Court’s duty to travel on a voyage of discovery, even if the words in the provisions of a statute or Court’s process are ambiguous is strictly limited”. PER E. EKO, J.S.C.
COUNSEL – DUTY OF COUNSEL TO BE CONSISTENT IN THE PRESENTATION OF A CASE
“This takes one to the Counsel’s duty to be consistent in his advocacy. It is not permitted for Counsel “to chop and change his case from stage to another in the litigation progress” as Abiru, JCA puts it in Alhaji Ibrahim Sheka v. Alhaji Umaru Bashari (2013) L.P.E.L.R. – 2140 (C.A). At the trial Court this same Appellant, represented by the same Counsel, admitted in the affidavit in support of the motion, the Ruling which is the subject of this appeal that the Plaintiff commenced this action against the Defendant as the owner/assignee and exclusive licensee of the copyright in the work “OJUMO RE” allegedly infringed. Through Prof. Sodipo of Counsel, the Appellant now shifts the goal posts on the issue to the Plaintiff lacking locus standi because it is not a Collecting Society, by dint of Section 32B of the Copyright Act, as amended. Counsel, must state the same thing and speak on the same thing from the trial Court to the appellate Courts. His posture at trial must not be at variance with the posture at the Appeal Court on the same issue. He must be consistent on the presentation of a case: Subreu v. The State (2010) 8 NWLR (Pt. 1197) 586; Ebia Construction Ltd v. Costain (W.A) Plc (2011) 6 NWLR (Pt. 1242) 110.” PER E. EKO, J.S.C.
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COURT – DUTY OF COURTS IN THE INTERPRETATION OF STATUTE
“The consistent position of this Court is that courts lean against interpreting a statute as to deprive a party of an accrued right and that no retrospective operation is to be given to a statute as to impair an existing right or obligation: Afolabi v. Governor Of Oyo State (1985) 2 N.W.LR. (Pt. 9) 734; Adesanoye v. Adewole (2006) 14 N.W.L.R. (Pt. 1000) 242. PER E. EKO, J.S.C.
COMMENCEMENT DATE- EFFECT OF A COMMENCEMENT DATE IN A STATUTE
“The Act No. 42 of 1999 had a commencement date. The learned Counsel for the Respondent submits, on authority of Ojokolobo v. Alamu (1987) 2 N.S.C.C 991, and I agree, that where in a statute a commencement date is provided the presumption that the statute has retrospective effect is displaced.” PER E. EKO, J.S.C.
PRINCIPLES OF LAW – FUNDAMENTAL PRINCIPLES OF LAW
“The learned Appellant’s Counsel has not been able to surmount two basic principles which indeed are fundamental in our jurisprudence. They are that an appeal is generally regarded as a continuation of the original suit, rather than the inception of a new one, and that in an appeal parties are confined to their case as pleaded in the Court of first instance: Adegoke Motors Ltd. v. Adesanya & Anor. (1989) L.P.E.L.R. – 94 (S.C). This principle prevents the parties from making a new and different case from that argued at the trial Court without express leave of Court. The second is audi alteram partem which is an integral principle of fair hearing both at common law and in Section 36(1) (formerly S.33 (l) of the Constitution. PER E. EKO, J.S.C.
PLEADINGS- PURPOSE OF PLEADINGS
“The aim of pleadings is to give notice of the case to be met so that the other party can adequately prepare for it and join issues, it prevents trial by ambush and saves either party the embarrassment of being taken by surprise: George v. Flour Mills Ltd. (1965) 1 ALL N.L.R. 71; Emegokwe v. Okadigbo (1973) 4 S.C. 113; Bunge v. Governor, Rivers State (2006) 12 N.W.L.R. (Pt. 995) 573 at 595.” PER E. EKO, J.S.C.
STATUTES REFERRED TO:
Constitution of the federal republic of Nigeria, 1999
Copyright Act, 1988, as amended (now 1999)
Evidence Act, 2011
Professional Conduct for Legal Practitioners, 2007