LITERAMED PUBLICATIONS LIMITED v. MARIE AKPENYI
(2014)LCN/7587(CA)
In The Court of Appeal of Nigeria
On Thursday, the 4th day of December, 2014
CA/L/518/2010
RATIO
APPEAL: RAISING FRESH ISSUES ON APPEAL; WHETHER THE RESPONDENT MUST SPECIFICALLY SEEK LEAVE OF THE COURT TO RAISE A FRESH ISSUE
The law is settled that, to successfully raise a fresh or new issue on appeal, as the Respondent did with Exhibit 12, the Respondent must specifically seek leave of this court to raise the new issue where such leave is not sought for, and obtained, as is the case with the present appeal, the fresh issue must be discountenanced. See: JO VS. DOM (1999) 9 NWLR (Pt. 620) 538; OBIOHA VS. DURU (1994) 8 NWLR (Pt. 365) 631; (1994) 10 SCNJ 48, OSHATOBA VS. OLUJITAN (2000) 5 NWLR (Pt. 655) 159 at 171; STIRLING CIVIL ENG. LTD VS. YAHAYA (2002) 2 NWLR (Pt. 750) 1 at 15. per. SIDI DAUDA BAGE, J.C.A.
COURT: DECLARATORY JUDGMENT; WHETHER DECLARATORY JUDGMENT ARE DISCRETIONARY REMEDIES WHICH SHOULD BE EXERCISED JUDICIALLY AND JUDICIOUSLY
On the guide to a declaratory judgment, see the Supreme Court case of DANTATA VS. MOHAMMED (2000) 5 S.C. 20; (2000) 7 NWLR (Pt. 664) 176 at 205 – 206 per Onu JSC (as he then was):
By long line of decided cases, it has been established particularly in ERONINI VS. IHEUKO (1989) 2 NWLR (Pt. 101) 46 at 60 – 61 that declaratory judgments being equitable remedies are discretionary remedies which should be exercised judicially and judiciously. In the instant case, the Plaintiff in my view, is entitled to the declaratory reliefs sought both in law and in equity. per. SIDI DAUDA BAGE, J.C.A.
JUSTICE
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
A. OSARUGUE OBASEKI ADEJUMO Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
LITERAMED PUBLICATIONS LIMITEDAppellant(s)
AND
MARIE AKPENYIRespondent(s)
SIDI DAUDA BAGE, J.C.A. (Delivering the Leading Judgment): This is an appeal by the Appellant against the judgment of the Federal High Court in the Lagos Judicial Division before the Honourable Justice Dan Abutu, delivered on the 24th July, 2009.
The action was instituted in 2002 and Judgment delivered by the lower Court to be set aside on 24th July, 2009.
In the lower Court, the Plaintiff (the Respondent) claimed against the Defendant (the Appellant) for:
a) A Declaration that the removal of the Plaintiffs name from the new Edition by a letter dated 25th April, 2002 by Defendant is ultra vires her powers, unconstitutional, null and void.
b) A Declaration that the Plaintiff is still the owner of the New Edition of “FRENCH FOR BEGINNERS” and that she is entitled to have her full Royalty and share of profit as per the New Edition.
c) The sum of N50 Million (Fifty Million Naira) being Damages for Breach of contract by the Defendant and General Damages suffered by the Plaintiff as a result of loss of good will with other partners.
d) The sum of N50 Million Naira jointly and severally against the Defendant, being special Damages for Royalty years of 1998, 1999, 2000, 2001 and 2002 and other expenses incurred by the Plaintiff as at when the Union Bank Cheque was sent back to the Defendant.
e) Interest on the said sums of money mentioned in subparagraph e & d at the rate of 25% per annum from 1998 till the date of the Judgment and thereafter at the rate of 10% until full payment.
f) That all the accounts and records of the money realized during the sales of 1997, 1998, 1999, 2000, 2001, 2002 till date should be produced.
g) Total cost of this suit.
The reliefs or claims of the Respondent is at pages 9 – 10 of the record of appeal.
STATEMENT OF FACTS
The Respondent is the authors of a book known as “FRENCH FOR BEGINNERS” which was later changed and reviewed and called Lantern Comprehensive French by the Appellant without the consent and authority of the Respondent.
The Respondent commenced this suit by a writ of summons and statement of claim both dated 16th October, 2002.
The Appellant filed her statement of defence dated 5th February, 2003 on 31st March, 2003.
The Respondent filed amended statement of claim dated 14th December, 2005.
The Appellant filed her amended statement of defence dated 16th December, 2005 on 16/01/2006.
The Respondent gave evidence and closed her case.
The Respondent was cross examined by the Appellant’s counsel.
The Appellant gave evidence and close her case after calling 3 witnesses.
The Respondent tendered 16 exhibits during the trial of the suit at the lower Court and all the exhibit tendered at the lower court have been transmitted to the Court of Appeal as same were omitted in the records of the appeal transmitted by the Appellant.
The Appellant was cross examined by the Respondent’s counsel.
On the 13th of February 2009 the Appellant filed her final address dated 11th of February 2009 in the matter (The final address is at pages 168 – 174 of the record of the Appeal).
The Respondent on the 24th March 2009 filed her final address dated the 13th March, 2009. (The final of the Respondent is at pages 175 – 194 of the record of Appeal).
On the 13th May, 2009 the Appellant filed a reply dated the 11th May, 2009 to the final address of the Respondent. (The reply address of the Appellant is at pages 198 – 202 of the Record of Appeal).
The parties on the 19th May, 2009 adopted their written addresses. (The proceedings for the adoption of the written addresses are at pages 203 – 204 of the Record of Appeal).
The Honourable Court delivered Judgment in this suit on Friday the 24th July, 2009 and entered judgment for Respondent. (The judgment of the Honourable court is at pages 207 – 288 of the Record of Appeal).
From the Notice of Appeal above, the Appellant has formulated the following three (3) issues for determination to wit: –
(1) Whether the learned trial judge was right in law to have given judgment to the Respondent on the issue of Royalty having found that she did not prove her case on the point (Distilled from Ground 1).
(2) Whether the learned trial judge was right to have rejected the evidence of DW2 & DW3 on the review of the books and whether the Respondent is entitled to royalty on the reviewed books (Distilled from grounds 2 & 3).
(3) Whether the Honourable Court was right deciding that the Respondents’ book cannot be reviewed without her consent.
On the other hand, the Respondent formulated the following four (4) issues for the determination of the appeal to wit:-
(1) Whether in the circumstances of this suit, the Respondent is entitled to be paid her royalty as the other 2 (two) co-authors have been paid.
(2) Whether in the circumstances of this case the trial judge was right to have rejected the evidence of DW2 and DW3 on the review of the books and whether the Respondent is entitled to royalty on the reviewed books.
(3) Whether in the circumstances of this suit the Appellant has right to remove the name of the Respondent as the author and owner of the book.
(4) Whether in the circumstances of the suit the Appellant has the right to review the Respondent’s book without her consent.
Having examined the two (2) set of issues formulated by the parties, the Appellant’s issue one (1) is the same with the Respondents issues one (1) and three (3). Appellant’s issue 2 is the same with the Respondents issue two (2).
Appellant’s issue three (3) is the same with the Respondent’s issue No. Four (4). That being the case, I tend to be guided by the three (3) issues as formulated by the Appellant and the determination of this appeal.
ARGUMENTS ON ISSUE ONE (1) OF APPELLANTS WHICH IS ISSUES 1 AND 3 OF THE RESPONDENT’S
Learned counsel to the Appellant submitted that, the Kernel of the Respondents case at the lower Court was the 10% Royalty contained in Exhibit 2 and which was meant to be shared by the 3 authors and which she collected her own share in 1977 without complaint. From the Respondent’91s Amended Statement of claim and the evidence led in support she was not only denying Exhibit 2 which is a standard contractual agreement of the Appellant with her authors as attested by DW1, she was also claiming a share of the profit of the Appellant which she claimed was entitled to by the aforesaid earlier agreement. The Respondents claimed she was entitled to 7’bd% royalty on the profit of the Appellant. The 7’bd% was never pleaded and thus goes to no issue see: EMEGOKWE VS. OKADIGBO (1973) 4 SC 113 at 117.
Learned counsel submitted further that, the trial court rightly decided that the Respondent was not able to prove the existence of a different agreement with the Appellant, but the court went ahead to award remuneration which the Respondent never claimed instead of dismissing her case. It is the law that no court shall give judgment on an issue which is at variance with the case made out by a party at the trial of a case. The duty of a court is to consider the case before it. See: – OJO OSAGIE VS. ADONRI (1994) 6 NWLR (PT. 349) 131 at 154.
In reply to the arguments above, the learned counsel to the Respondent submitted that, from the Appellants Statement of Defence the Appellant agreed in totality that 10% of the royalty was paid to the Respondent in 1977 and also the other 2 (two) co-authors that wrote the books and the 1977 Royalty paid to the Respondent was paid without presentation of Exhibit 2. The Respondent and the other co-authors knew very well that what was paid as royalty was not the 10% agreed to be paid to the authors each, hence the preparation of Exhibit 12 complaining that the Appellant paid them peanuts as royalty. There was no time the Respondent instigated the other 2 authors not to sign Exhibit 2 which the Appellant claimed as the standard agreement. The Exhibit 12 was not inclusive in the record of appeal, but has now been transmitted to the Court of Appeal for clarification of this point.
Learned counsel submitted further that Exhibit 2 which the Appellant is relying on as standard agreement did not in any way contain term or condition that the Respondent and the 2 [two] co-authors will share 10% of the net sales of their book as their Royalty. The said Exhibit 2 which is dated 15th July, 1999 was addressed to the Respondent and the other authors differently and individually with paragraph 4 of the said Exhibit 2 stating it very clear that 10% will be paid to the authors each and not to be shared. In paragraph 9 of the said Exhibit 2 it is clear that there will be no amendments to the agreement except in writing signed by the parties. Therefore, in clear terms there was no provision of sharing 10% Royalty by the Respondent and the other authors, and no amendment in writing to that effect which finally shows that the Respondent is entitled to have her royalty paid as contained in the judgment of the lower court delivered on 20th July, 2009.
Furthermore, from the Appellant’s brief at page 3 paragraph 2.03 it is agreed and admitted by the Appellant the other 2 [two) authors have been paid their royalty in the ratio of 40:30:30 without paying the Respondent, therefore, it is clear that the Appellant has recognized the fact that the Respondent is entitled to have royalty. The evidence of DW1, DW2, and DW3 is that in the publishing industry, authors royalty is 10% of the proceeds of sales which the Appellant paid to the Respondent in 1977. The Respondent is entitled to her 10% Royalty.
Learned counsel submitted further that as long as the Respondent did not sign Exhibit 2 and there is no valuable consideration from the Appellant to the Respondent as per the work of the Respondent and no vesting clause in any contract between the parties, the Appellant has no right to review the Respondent’s books without her consent. It is very true that the Appellant claimed that the other 2 authors reviewed the books. This is not enough for the Appellant not to pay the Respondent her royalty. The 3 authors must review the books together and where 2 authors did it without the consent of the Respondent is immaterial, the Respondent is bound to be paid her Royalty. The Respondent cannot be as a result of the review of her books be deprived of her copyright in her literary work as stated by Sections 10 and 12 of the Copyright Act. See WILLIAMS VS. SETTLE (1960) 1 W.L.R. 2172.
In the Appellant’s reply brief filed 6/6/11 dated 27/5/11, the Appellant submitted that, the Respondent had no right to formulate her own issue different from that of the Appellant. The Respondent can only respond to the issue as formulated by the Appellant. The issue must be struck out or discountenanced. See IDIKA & ORS. VS. ERISI & ORS. (1988) 2 NWLR (PT.78) 759.
Learned counsel further submitted that, on the merits the Appellant has never denied that the Respondent is entitled to royalty on books till 2002 when her name was removed because she did not partake in the review of that year. Evidence led by the Respondent herself showed that she rejected the cheques for royalties for year 1998 and 1999 based on what was paid to the 2 other authors which is the traditional royalty payable in publishing industry. All what she needed to do like the 2 other joint authors is to sign Exhibit 2, in order to avoid another round of controversy as to what the rights of the parties are; and this the Respondent still refuses to do.
Learned counsel submitted further that, all the arguments purportedly canvassed in support of issue 1 formulated by the Respondent must go to no issue as the issues of whether the Respondent is the owner of the book or that each author was entitled to 10% apiece are new and irrelevant point which the Respondent is seeking to introduce into the appeal by subterfuge. They were issues that were never canvassed by the parties at trial of the cause so that the Respondent’s argument can be said to be disjointed so much that it does not even support the issue (issue 1) issue should be considered abandoned. The issue is a fresh issue fundamentally different from the complaint of the Appellant in this court, or indeed the position of the parties in the lower Court.
On the part of the Court, the submissions of counsel are carefully examined.
The Appellant in its reply brief at paragraph 3.4. page 4 did submitted that the Respondent in exercising the right to formulate his own issue, did so different from that of the Appellant. This is the issue the Respondent can only respond and not to formulate and proffer arguments in support of an issue different from the complaint of the Appellant in this court, except he has filed a cross -appeal or Respondent’s Notice. All the arguments purportedly canvassed in support of issue 1 formulated by the Respondent must go to no issue, as issues of whether the Respondent is the owner of the book or that each author was entitled to 10% apiece are new and irrelevant points which the Respondent is seeking to introduce into this appeal by subterfuge. They were issues that were never canvassed by the parties at the trial of the cause, so that the Respondent’s argument can be said to be disjointed so much that it does not even support the issue (Issue 1) formulated for the court and so must mean an abandonment of the issue formulated.
For the purpose of clarity, it becomes apposite to state Ground 1 of the Notice of Appeal, contained on page 304 of the records, and their particulars to see whether as argued by the Appellant, the Respondent’s formulation of her issue No. 1 from Ground 1 is offensive to the letters and spirit of that Ground.
GROUND ONE (1)
The learned trial judge erred in law by the decision that the Respondent was entitled to 30% of the remuneration payable to the 2 other authors joint authors.
PARTICULARS OF ERROR
(a) The 30% remuneration awarded by the court was not pleaded and neither was evidence led in support by the Respondent.
(b) The remuneration awarded to the Respondent is at variance with the case of the Respondent at the trial court which mainly the claim of the existence of an agreement different from Exhibit 2, and whose terms were said to be fundamentally different from Exhibit 2.
(c) There was no jurisdiction upon which the remuneration could have been awarded by the honourable court same having not been pleaded by the Respondent.
(d) The proper order to make upon the decision by the honourable court that the Respondent did not prove the existence of a different agreement from Exhibit 2 was a dismissal of her case on the point.
(e) Award of remuneration not pleaded or claimed by the Respondent in this case is to turn the trial at the lower Court to an academic exercise, since she cannot enjoy the remuneration and or, the fruit of the judgment without singing Exhibit 2, the standard contract document of the Appellant which she has refused to sign.
Having set down the Ground one (1) of the Notice of Appeal, let us now look at the issue No. 1 of the Respondent which is said not to relate to the above ground.
ISSUE 1
“Whether in the circumstances of this suit, the Respondent is entitled to be paid her royalty as the other 2 (two) co-authors have be paid.”
The main grouse of the Appellant in her Ground 1 is the decision of the lower Court that the Respondent was entitled to 30% of the remuneration payable to the 2 other authors joint authors. Issue 1 of the Respondent deals with the Respondents entitlement to be paid her royalty as the other 2 (two) co-authors have been paid. There is a direct nexus between Ground 1 of the Notice of Appeal and Issue No. 1 of the Respondent. The Issue No. 1 of the Respondent therefore survives this appeal. The state of the law is that, where there is the failure to relate the issues to the Ground of Appeal, such issue are treated as incompetent and arguments based on such issues are discountenanced. See: AKINFOLARIN VS. AKINOLA (1988) 3 N.W.L.R (Pt. 81) 235; OBED OKPALA & ANOR. VS. RICHARD IBEME & ORS. (1989) 2 NWLR (Pt. 102) 208; ONIFADE VS. OLAYIWOLA (1990) 2 NWLR (Pt. 161) 130; MOMODU VS. MOMAH (1991) 1 NWLR (Pt. 169) 608 at 620 – 621; AMADIKE VS. GOV OF IMO STATE (1993) 2 NWLR (Pt. 275) 302 at 313. This is not the position with issue No.1 of the Respondents brief. All the submissions made in paragraphs 3.4 and 3.9 of the Appellants reply brief in this respect are discountenanced.
Let me now turn to the Respondents argument in her issue No. 1. The Respondent hammered on the Appellant’s statement of defence, it said the Appellant agreed in totality that 10% of the royalty was paid to the Respondent in 1997 and also the other 2 (two) co-authors that wrote the books and the 1997 Royalty paid to the Respondent was paid without presentation of Exhibit 2. The Respondent and the other co-authors knew very well that what was paid as royalty was not the 10% agreed to be paid to the authors each, hence the preparation of Exhibit 12 complaining that the Appellant paid them peanuts as royalty. That there was no time the Respondent instigated the other 2 co-authors not to sign Exhibit 2 which the Appellant claimed as standard agreement. The Exhibit 12 was not inclusive in the record of appeal, but has now been transmitted to the Court of Appeal for the clarification of this point.
The existence of Exhibit 1.2 it is admitted by the Respondent herself who raised it, as a fresh issue on appeal. The law is settled that, to successfully raise a fresh or new issue on appeal, as the Respondent did with Exhibit 12, the Respondent must specifically seek leave of this court to raise the new issue where such leave is not sought for, and obtained, as is the case with the present appeal, the fresh issue must be discountenanced. See: JO VS. DOM (1999) 9 NWLR (Pt. 620) 538; OBIOHA VS. DURU (1994) 8 NWLR (Pt. 365) 631; (1994) 10 SCNJ 48, OSHATOBA VS. OLUJITAN (2000) 5 NWLR (Pt. 655) 159 at 171; STIRLING CIVIL ENG. LTD VS. YAHAYA (2002) 2 NWLR (Pt. 750) 1 at 15. The Respondents argument in relation to Exhibit 12 is hereby discountenanced having not sought for, and obtained the leave of this court to bring the said fresh evidence which was not part of the record at the lower Court. Now the Respondent is left without Exhibit 12. Her argument by her pleadings and her evidence on oath was that the 10% royalty contained in Exhibit 2 and which was meant to be shared by the 3 authors and which she had earlier collected in 1997 without any complaint was different from what the Appellant company had earlier agreed with her from the Respondents amended statement of claim and the evidence led in support she did not only deny Exhibit 2 as the standard of the Appellant with her authors, she was also claiming a share of the profits of the Appellant, which she claimed she was entitled to. The Respondent from the record refused to sign Exhibit 2 to formalize her relationship with the Appellant. It is not denied that Exhibit 2 was to establish between the two the cognizable or traditional 10% royalty as remuneration to authors without a standard agreement signed between the parties, it become difficult, or uncertain, what exactly is the entitlement of the Respondent. The issue of the remuneration cannot hang on nothing, it must be based on an agreement which, becomes enforceable in law. The issue of the remuneration of the Respondent, cannot be left on her whims and caprice to determine. The parties in the contract must agree on a standard to be enforced between them, and that is Exhibit 2 which the Respondent refused to sign. It is again difficult and the record does not show how the learned trial judge arrived at the mathematical calculation of 30% remuneration to be shared between the three (3) authors in the absence of Exhibit 2 the standard agreement between the parties. It is settled law that one cannot put something on nothing and expect it to stay there, it will surely collapse. See: MACFOY VS. U.A.C LTD. (1962) AC 152 at 160. Besides the issue of the 30 percent was never pleaded by the parties at trial. The learned trial judge turned himself into a Father Christmas, granting to a party what was not even asked for. Exhibit 2 remains central to the relationship between the Appellant and the Respondent, to provide a basis for enforcement in court. I resolve issue 1, which is the equivalent of the Respondent’s issues 1 and 3 in favour of the Appellant, and against the Respondents.
On issue No. 2, whether in the circumstances of this case, the trial judge was right to have rejected the Evidence of DW1, DW2, and DW3 on the review of the books and whether the Respondent is entitled to royalty on the reviewed books. A fact which is not denied by either party is that the books were reviewed. It is not denied that from Exhibits 14A, 141, 14C, 14G, 14E and 14N respectively the names of the Respondent appeared in the New Edition, the Respondent becomes entitled to payment of her royalty, whether the Appellant did or did not invite her to come for the review. The court of Law is a court of cold facts and Law, and not a court of fiction. Fiction it is said belongs to Alice in Wonderland. The name of the Respondent once it appeared in the reviewed books as one of its authors, she becomes entitled to her royalty on those books. This court had already adjudged in the resolution of issue No. 1 that the entitlement of the Respondent to the royalty must be based on her signing of Exhibit 2 which is the standard contractual agreement of the Appellant with her authors. After that, the Respondent becomes entitle to all her outstanding royalties in the old and the reviewed books with the Appellant. Being a declaratory judgment, this is the only equitable remedy to the Respondent. On the guide to a declaratory judgment, see the Supreme Court case of DANTATA VS. MOHAMMED (2000) 5 S.C. 20; (2000) 7 NWLR (Pt. 664) 176 at 205 – 206 per Onu JSC (as he then was):
By long line of decided cases, it has been established particularly in ERONINI VS. IHEUKO (1989) 2 NWLR (Pt. 101) 46 at 60 – 61 that declaratory judgments being equitable remedies are discretionary remedies which should be exercised judicially and judiciously. In the instant case, the Plaintiff in my view, is entitled to the declaratory reliefs sought both in law and in equity.
In the final analysis being a declaratory judgment, this appeal succeeds in part only. The judgment of Hon. Justice Dan Abutu of the Federal High Court in Suit No. FCH/L/CS/967/2002, delivered on the 24th of July, 2009, which awarded the Respondent to this appeal 30% of remuneration payable to the 2 other authors is hereby set aside by this court.
Parties to bear their own costs.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I had the privilege of reading the lead judgment delivered by my learned brother, SIDI DAUDA BAGE, JCA.
I am in agreement with the reasoning and conclusion contained therein.
To further buttress the reasoning so stated I will re-iterate that an issue for determination must be relevant to the grounds of appeal filed in Court. If not those issues are incompetent. The court in ALHAJI A.R. ANIMASHAUN V. UNIVERSITY COLLEGE HOSPITAL (1996) 10 NWLR (PT. 476) 55 stated thus:
“The general rule is that issues for determination must be relevant to the grounds of appeal filed in Court; If not those issues are incompetent. The overriding principle of cause of Justice, the umbrella under which the lower court sought refuge, the greatest respect, does not avail an appellant whose ground of appeal cannot be linked in any way whatsoever with the issues formulated for determination. Those issues are therefore incompetent and they ought to be struck out as such.” Per BELGORE, JSC (P.8, Paras A-C)
It is also pertinent to note that fresh issues of appeal require leave of court. If a party will bring new evidence on appeal as a requirement of law such must be brought upon the leave of court first sought and obtained. See OJIOGU V. OJIOGU (2010) 9 NWLR (PT. 1198) 1 S.C
The law is also trite that it is not the duty of the trial court to distribute largesse by granting unclaimed reliefs. See GEORGE AND OTHERS V. DOMINION FLOUR MILLS Ltd. (1965) 1 ALL N.L.R. 71, 71), reliefs cannot be granted for facts not pleaded. See OBIJJURU V. OZIMS (1985) NWLR (Pt. 6) 167.
For the reasons stated and aforementioned, I too allow the appeal in part and affirm the judgment of HON. JUSTICE DAN ABUTU of the Federal High Court in Suit No. FCH/L/CS/967/2002 delivered on the 24th day of July, 2009.
JAMILU YAMMAMA TUKUR, J.C.A.: I had the opportunity of reading before today the draft judgment just delivered by my brother Sidi Dauda Bage, JCA.
I agree with the judgment and abide by the consequential orders made therein.
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Appearances
Oladele SolankeFor Appellant
AND
V. E. ChukwuekeFor Respondent
