MR. OLUFEMI ALADETUYI v. MR. DARAMOLA TAIWO
(2013)LCN/5874(CA)
In The Court of Appeal of Nigeria
On Friday, the 25th day of January, 2013
CA/L/879/2010
RATIO
APPEAL: GROUNDS OF APPEAL: WHEN A GROUND OF APPEAL ALLEGES MISDIRECTION OR ERROR IN LAW, THE PARTICULARS MUST BE CLEARLY STATED
The law is elementary, that “where a Ground of Appeal alleges misdirection or error in Law, the particulars and misdirection or error shall be clearly stated.” – Order 6 Rules 2(2) of the Court of Appeal Rules 2011 is instructive. The provisions is of a mandatory nature.PER NOSAKHARE PEMU, J.C.A.
APPEAL: POWER OF THE COURT OF APPEAL TO STRIKE OUT A NOTICE OF APPEAL WHEN AN APPEAL IS NOT COMPETENT
Order 6 Rule (6) of the Court Rules, confers power on this court, to strike out a notice of appeal, when an appeal is not competent or for any other sufficient reason.
Because a Ground of Appeal is hinged on the Judgment complained of, where an Appellant alleges misdirection and/or error of law, common prudence dictates that particulars should be furnished to buttress such allegation, (if for nothing else) to enable this court consider the Grounds of Appeal in the interest of justice and fair play.PER NOSAKHARE PEMU, J.C.A.
JUSTICES
ADAMU JAURO Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria
Between
MR. OLUFEMI ALADETUYI Appellant(s)
AND
MR. DARAMOLA TAIWO Respondent(s)
NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of Honourable Justice M. A. Dada of the Ikeja High court, delivered on the 30th day of March 2010, whereby he granted all of the Respondent’s prayers in an action for the enforcement of the Fundamental Human Rights of the Respondent.
The Respondent (Applicant at the lower court) had instituted an action for the enforcement of his fundamental human rights at the lower court on the 7th of September 2009, Pursuant to an ex-parte application filed on the 7th September 2009, they had sought leave of the lower court to apply for the following orders viz:
(1) Leave to apply for an order for the enforcement of his fundamental human rights to liberty, fair hearing, human dignity and freedom of movement as contained in the reliefs set out in the Statement attached hereto.
(2) AND ORDER that the leave so granted herein shall operate as a stay and/or suspension of all actions or matters relating to or connected with the complaint in this application until the final determination of this matter.
(3) Any order or other orders as this Honourable Court may deem fit to make or grant in the circumstances of this matter.
Pages 3 – 4 of the Record of Appeal.
In support of the application and pursuant to Order 1 Rules 2(3) of the Fundamental Human Rights (Enforcement Procedure) Rules 1979, the Applicant furnished the names of the Applicant, description of the Applicant, the Reliefs sought by the Applicant and Grounds for seeking the reliefs sought – pages 3 – 10 of the Record of Appeal. There was also a verifying affidavit filed in the 7th of September 2009 – pages 15-16 of the Record of Appeal.
The Appellant [1st Respondent in the court below) filed a counter affidavit in opposition to the application ex-parte, dated 30th November 2009 (pages 32-34 of the Record of Appeal). He denied being involved in the matter, and urged the lower court to refuse the Respondents prayers. The Respondent filed a reply to the counter affidavit dated 14th December 2009 – pages 61-62 of the Record of Appeal.
After taking arguments from the respective parties, the lower court granted all the reliefs of the 1st Respondent (Respondent in the present appeal).
The Appellant is dissatisfied with the Ruling of the lower court and has appealed it.
Pursuant to the Practice Directions of this Honourable court, the Appellant filed a Notice of Appeal on the 17th of June 2010, encapsulating (shorn of the omnibus ground) four (4) Grounds of Appeal – pages 107-110 of the Record of Appeal.
The Appellant filed his Brief of Argument on the 26th of October 2010. It is settled by Tunde Adeoye Esq.
On his part, the Respondent filed his brief of argument on the 25th of November 2010. Same is settled by Clement Bosa Esq.
On the 21st of November 2012, the parties adopted briefs of argument.
In his brief of argument, the Appellant has articulated, proffered and distilled these three (3) issues for determination.
They are
1. Whether the lower court correctly applied the provisions of the Copyright Act 1988 Cap. 68, Laws of the Federation of Nigeria 1990, in reaching its decision, that the Appellant herein has no right to complain for the infringement of the copyright of Institute of Chartered Accountants of Nigeria.
2. Whether the writing of petition to the Police without mere amounts to infringement of fundamental rights where there is no evidence either oral or documentary that the writer of the petition did anything beyond the writing of the petition.
3. Whether there are conflicts in affidavit evidence in support of the application for the enforcement of Human Rights and counter affidavit against, and if there are conflict, how should the conflicts be resolved
In his brief of argument, the Respondent had articulated, and distilled three issues for determination. They are:
(1) Whether the learned trial judge was correct when she held that the Appellant does not have the monopoly or exclusive right to the publishing and marketing of the I.C.A.N. (Institute of Chartered Accountants of Nigeria)(hereinafter referred to as I.C.A.N.) pathfinder materials to give him the right to petition the Respondent leading to the Respondent’s arrest and detention by the police (GROUND ONE )
(2) Whether the petition of the Appellant to have Police against the Respondent was not instigation to the police to bring the Respondent to book? (GROUND TWO)
(3) Whether there were conflicts in the affidavit evidence of the parties before the lower court? And if there was (which is not conceded) whether upon the documents before the court it was necessary to call for oral evidence to resolve the conflicts (GROUND THREE)
It is apparent that the Appellant did not tie his issues to the Grounds of Appeal. This is tolerable in law. However it is desirable.
But a cursory look at the Grounds of Appeal, speaks volume of the dearth of the skill of proficient legal drafting & on the part of the Appellant.
Ground No. 2, it is noted speaks about misdirection on the part of the learned trial judge, but no particulars of mis-directions were stated, as required by law. Ipso facto, in Ground No. 3 and 4, the Appellant complains about error in law on the part of the learned trial Judge, and no particulars of error were given.
The law is elementary, that “where a Ground of Appeal alleges misdirection or error in Law, the particulars and misdirection or error shall be clearly stated.” – Order 6 Rules 2(2) of the Court of Appeal Rules 2011 is instructive. The provisions is of a mandatory nature.
Order 6 Rule (6) of the Court Rules, confers power on this court, to strike out a notice of appeal, when an appeal is not competent or for any other sufficient reason.
Because a Ground of Appeal is hinged on the Judgment complained of, where an Appellant alleges misdirection and/or error of law, common prudence dictates that particulars should be furnished to buttress such allegation, (if for nothing else) to enable this court consider the Grounds of Appeal in the interest of justice and fair play.
I may therefore safely say that Grounds 2, 3 and 4 in this Appeal cannot be considered, because of failure on part of counsel to abide by the Rules of this court, in drafting his Grounds of Appeal in the Notice of Appeal. Accordingly Grounds of Appeal 2, 3 and 4 in the Notice of Appeal are hereby struck out.
This leaves us with only Ground No. 1 of the Notice of Appeal.
Ground No. 1 has this to say
“The learned trial judge erred in law and thereby came to a wrong decision when he held that the 1st Respondent/Appellant does not and never had any monopoly to the publishing and marketing of the ICAN (Institute of Chartered Accountants) pathfinder when indeed the Appellant has a duly executed Agreement with the Institute of chartered Accountant making him a Licensee to the exclusion of the Respondent who has no authority in whatever nature or form from Institute of Chartered Accountant to publish and market the pathfinder.”
PARTICULARS OF ERROR
(a) That Institute of Chartered Accountant is the Copyright owner of pathfinder and only body that can challenge the Respondent/Applicant thereby rendering useless the position of the Appellant as a licensee with enforceable right against the Respondent.
(b) That the Agreement with Institute of Chartered Accountant by the Appellant cannot be interpreted as copy right on the issue and therefore no piracy committed by the Respondent for which the Appellant can make a report to Police leading to the arrest of the Respondent.
(c) That the Appellant whose position is that of a license of the owner must join the Institute of Chartered Accountant before a report can be made quite contrary to provision of Copyright Act 1988 particularly section 15 which shows clearly that it confers right on owners, assignees and exclusive licensee of Copyright works to complain against piracy.
Issues No 2 and 3 in the Appellant’s brief of argument, flowing from the Grounds of Appeal, 2, 3 and 4 are hereby discountenanced.
Now on Issue No 1, I shall reproduce same at the expense of repetition. It is
“Whether the Lower Court correctly applied the provision of Copyright Act 1988 Cap 68 Federation of Nigeria 1990 in reaching its decision that the Appellant has no right to complain for the infringement of the copyright of Institute of Chartered Accountants of Nigeria”
Now the Applicant at the lower court (now Respondent) brought his application pursuant to order 2 Rule (1) of the Fundamental Rights (Enforcement Procedure) Rules 2009.
It has this to say:
“Any person who alleges that any of the Fundamental Rights provided for in the Constitution or African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act and to which he is entitled has been, is being, or is likely to be infringed, may apply to the Court in the State where the infringement occurs or is likely to occur, for redress.”
The issue, in my view, is whether the Applicant’s right has been breached in any manner as to enable him to apply for enforcement of his fundamental rights to liberty, fair hearing, human dignity and freedom of movement.
By Order 5 Rule 1(1) of the 2009 Rules, it states
“At the hearing of any application, motion, or summons under these Rules, the Court or Judge concerned may make such orders, issue such Writs, and give such directions as it or he may consider just appropriate for the purpose of enforcing or securing the enforcement of any of the Fundamental Rights provided for in the Constitution to which the complainant may be entitled.”
At page 97 of the Record of Appeal, the learned trial judge, rightly in my view observed
“The issue therefore is whether the Applicant’s right have been breached by the Respondents or any of them as alleged. It is a simple one indeed. The agreement the 1st Respondent has with ICAN is explicit enough. Clause 36 therefore states clearly that ICAN is not estopped from publishing and marketing its Pathfinder. Therefore the 1st Respondent does not and never had any monopoly to the publishing and marketing of the ICAN pathfinder. The applicant who is not privy to the agreement between ICAN and the 1st Respondent is not under any obligation whatsoever to the 1st Respondent and he does not need any authorization, consent or approval of the 1st Respondent to market ICAN pathfinder or to print the said works. ICAN is the only body to challenge if the 1st Respondent feels the agreement between them has been breached and not the Applicant or any member of the public…. I hold the view that there is no piracy with which the Applicant could have been validly arrested and detained. The petition the 1st Respondent admitted he wrote was ill-advised and I agree that the Applicant has been unduly harassed and hounded by the Respondents. His arrest which is based on a wrongful allegation is unlawful.
He went further
“I have no difficulty therefore in the absence of a copyright document to show that the 1st Respondent has exclusive rights to the works at anytime to agree that the fundamental right of the Applicant have been breached by his arrest and detention at the Area ‘F’ Police Station, Ikeja, upon the wrongful allegation…”
In support of the Motion ex-parte, the Applicant had filed Grounds for seeking the Reliefs sought.
Ground No (a) says
“The Applicant is businessman, book seller, and a member of I.C.A.N. and operates his business of book selling in his shop at Mary Land in Lagos within the jurisdiction of this Hon. Court”
If what the Respondent had done is allowed to abide, then every book seller would be arrested, and detained, because it is a well known fact that many booksellers sell books or materials in breach of copyright Laws.
There is no gainsaying that breach of copyright abound, but to arrest someone at will, is frowned upon by our Law.
In the counter-affidavit filed by the 1st Respondent on the 30/11/2009, he did not deny paragraph (a) of the averment in the Grounds for seeking the reliefs sought, by the Applicant. The fact therein are deemed admitted. In other works the Applicant is a businessman and a bookseller, as well as a member of ICAN.
Assuming the Applicant really did what the 1st Respondent alleged, he should have been properly arrested and charged to Court within the least possible time allowed by Law. The 1st Respondent should have done this instead of resorting to self help, by seizing his books from bookshop and carting them away. This clearly was an infringement of the Appellant’s fundamental human right and he had a right to have come to court to seek redress as he did.
Pursuant to the Provisions of the copyright Act 1988, Cap 68, Laws of the Federation of Nigeria 1990, a person has right to complain for the infringement of the copyright of Institute of chartered Accountants of Nigeria – sections 15(1) (2) and (3) of the copyright Act 1988, but a proper action can be instituted, and the provision do not envisage a situation where the aggrieved should infringe on the fundamental rights of the suspect as the Appellant was alleged to have done in this case.
The issue for determination can safely be said to be one that should be answered in the affirmative, and same is resolved in favour of the Respondent, and against the Appellant.
The result is that the appeal lacks merit and same is hereby dismissed. No order as to costs.
ADAMU JAURO, J.C.A.: I was privileged to read in advance the lead judgment just delivered by my learned brother, R. N. Pemu, J.C.A. I am in complete agreement with the reasoning and conclusion contained in the said judgment to the effect that the appeal is lacking in merit.
I adopt the comprehensive reasoning in the lead judgment as mine and hereby dismiss the appeal. I also endorse the order as to no costs.
FATIMA AKINBAMI, J.C.A.: I have had the privilege of reading the Judgment just delivered by my learned brother Rita Nosakhare Pemu JCA.
I agree with the reasoning and conclusion therein.
I also dismiss the appeal as lacking in merit.
I abide by the order as to costs.
Appearances
Tunde Adeoye Esq. With him T.O. Ajayi Esq.For Appellant
AND
C. O. Bosa Esq.For Respondent
