NATIONAL FILM & VIDEO CENSORS BOARD & ANOR v. AKINOLA ADEGBOYEGA & ORS.
(2012)LCN/5258(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 27th day of March, 2012
CA/I/15/2005
RATIO
INTERPRETATION OF A STATUTE: THE DUTY OF THE COURT TO ASCERTAIN THE INTENTION OF THE LEGISLATURE
In the interpretation of a Statute, the primary responsibility of the court is to ascertain the intention of the Legislature so as to give effect to it. To achieve this objective it is necessary for the court to read carefully not only the relevant sections of the Statute but also related sections and indeed the Statute as a whole. See the following cases: Odeneye v. Efunuga [1990] NWLR (Pt. 164): 11/12 SC 122: LPELR SC 288/1988. Ojokolobo v. Alamu [1987] 3 NWLR (Pt.61) 377. Olanrewaju v. The Governor of Oyo State & Ors [1992] NWLR (Pt.265), 11/12 SCNJ 92. LPELR – SC 206/1987. Per. CHINWE E. IYIZOBA, J.C.A.
JUSTICES
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
1. NATIONAL FILM & VIDEO CENSORS BOARD
2. MR. BASIL UGBEDE (head of Osogbo Centre for DG NFVCB) Appellant(s)
AND
1. AKINOLA ADEGBOYEGA
2. ALHAHI GBAJUMO
3. APOSTLE J. B. ADEYEMO
(On behalf of themselves and on Behalf of the Osun State members of Music advertisement association of Nigeria) Respondent(s)
CHINWE E. IYIZOBA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the rulings of Nnamani J. sitting at the Federal High court Osogbo Judicial Division dated 23/3/04. In their originating summons, the respondents sought the following reliefs from the lower court:-
1. A declaration that the defendants cannot compel the plaintiffs who are not distributors of video works but shop owners who sell video cassettes to end users (alongside other types of cassettes e.g Audio or CD or VCD) to register with the defendants for a fee of N5000.00 (five thousand naira) or for any amount howsoever.
2. A declaration that the arrest of some of the plaintiffs through the complaint of the defendant or the seizure of the plaintiffs’ goods is ultra vires wrongful and not in consonance with the Film and Video Censors Board Decree 1993.
3. An order compelling the defendants to refund any such money collected from the plaintiffs as registration or licensing fee.
The defendants/appellants’ reaction to the originating summons in addition to their counter affidavit in opposition was to file a motion on notice praying for an order striking out the name of the 2nd defendant for misjoinder and striking out the suit for incompetence, lack of cause of action and absence of locus standi. The lower court in the ruling of 11/3/04 found that the 2nd defendant was a necessary party and was properly joined as a party to the proceedings. The court also found that Decree No. 85 of 1993 did not include private sales by ordinary individual sellers and consequently dismissed the defendants/applicants’ motion. The lower court heard the plaintiffs respondents’ arguments in respect of the originating summons on 23/3/04 in the absence of defendants/appellants’ counsel and there and then delivered its ruling granting relief no. 3 of the originating summons ordering the defendants to pay to the plaintiffs the amount therein which is N10,000.00. Dissatisfied with these rulings, the defendants/appellants appealed to this court by a notice of appeal containing 9 grounds of appeal. The appellants’ brief of argument is dated and filed on 1/7/05 but deemed properly filed on 7/3/06. The respondent did not file any brief so the appellants by motion on notice applied and were granted leave on 4/5/11 to argue the appeal on their brief alone. The appeal was consequently heard on the same 4/5/11 and reserved for judgment. The judgment was not delivered due to the elevation to the Supreme Court of the then presiding Justice, Ngwuta JCA (as he then was). The appeal was adjourned to 8/2/12 for re-hearing. The respondents were duly served on 30/1/12. They did not appear and did not file their brief of argument. The appellants then argued the appeal urging the court to allow the appeal and to set aside the ruling and judgment of the lower court.
Out of the 9 grounds of appeal, the appellants formulated the following issues for the determination of this court:-
1. Whether the provisions of Decree No. 85 of 1993 for registration of a person who carries on the business of distributing or exhibiting of films and video works and licensing of all premises where films and video works are exhibited include the premises of the Plaintiffs.
2. Whether the Federal High Court, Osogbo Judicial Division was right in assuming jurisdiction over the 2nd defendant/appellant against whom no cause of action is disclosed both by the originating summons and the affidavit in support.
3. Whether the 2nd defendant can be made personally liable for the act of the 1st defendant.
4. Whether the appellants were denied the right of fair hearing by the Federal High Court, Osogbo Judicial Division in the hearing of the Originating Summons.
ISSUE I
1. Whether the provisions of Decree No. 85 of 1993 for registration of a person who carries on the business of distributing or exhibiting of films and video works and licensing of all premises where films and video works are exhibited include the premises of the Plaintiffs.
After setting out the provisions of Sections 26(1), 18(1), and 68 of the National Film and Video Censors Board Decree 1993, learned counsel for the appellants submitted that the provisions of the Decree apply to the premises of the respondents. Learned counsel further submitted that it was wrong for the respondents at the lower court and also the lower court itself to fall back on Form 2 of the second schedule to the Decree to arrive at the conclusion that the provision of Section 26(1) of the Decree applies to ‘main’ distributors only. Counsel relying on the case of Alhaii Aminu Dantosho v. Alhaji Abubakar Mohammed (2003) 6 MJSC 97 @ 104 ratio 13 submitted that there is nothing in Section 68 of the Decree that warrants the trial court going outside the section to look for another interpretation of the word ‘distributor’ by importing the word ‘main’ as the definition and wordings of the section are clear and unambiguous. Learned counsel argued that the respondents having admitted in their relief no. 1 that they are shop owners who sell video cassettes to end users, they come within the definition of distributors in section 68 of the Decree as persons engaged in the business of selling films and video works. Counsel submitted that they consequently fall within the purview of the section of the Decree requiring distributors to register with the National Film and Video Censors Board and urged the Court to so hold.
I have considered carefully the submissions of counsel on this issue, and I would begin by setting out in full the relevant sections of the Statute before considering whether the provisions apply to the premises of the respondents or the respondents themselves. Although the parties kept referring to the relevant statute as a Decree having been promulgated during the Military Regime, it is proper now to refer to it as an Act. It is now Cap 40 of the Laws of the Federation of Nigeria. There are slight variations in the numbering of the sections.
Section 17 of the National Film and Video Censors Board Act, Cap 40 Laws of the Federation provides:-
(1) Subject to the provisions of this Act no person shall exhibit a film or video work unless he is a holder of a license granted by the Board under this Act.
(2) No premises shall be used for a film or video exhibition except under and in accordance with a license granted in respect of the premises under this Act.
Section 25(1) provides: –
“As from the commencement of this Act, no person shall carry on the business of distributing or exhibiting a film or video work, unless he is a holder of a license granted by the Board under this Act.”
Section 66 of the Act (the Interpretation section) defines “‘distributor’ as a person for the time being engaged in the business of leasing, hiring, or selling films, video works;” and “premises’ as any house, room, building, garden, shop or place where any film or video work is exhibited, leased, hired to which admission is or may be procured by payment of money or by ticket or by other means or consideration.”
In the interpretation of a Statute, the primary responsibility of the court is to ascertain the intention of the Legislature so as to give effect to it. To achieve this objective it is necessary for the court to read carefully not only the relevant sections of the Statute but also related sections and indeed the Statute as a whole. See the following cases: Odeneye v. Efunuga [1990] NWLR (Pt. 164): 11/12 SC 122: LPELR SC 288/1988. Ojokolobo v. Alamu [1987] 3 NWLR (Pt.61) 377. Olanrewaju v. The Governor of Oyo State & Ors [1992] NWLR (Pt.265), 11/12 SCNJ 92. LPELR – SC 206/1987.
I have read the Statute as a whole. The explanatory note to the Act states that it is an Act, to among other things; establish the National Film Video Censors Board to regulate the censorship and public exhibition of films and video works and matters related therewith. Section 2 states that it shall be the duty of the Board to (a) license – (i) a person to exhibit films and video works; (ii) a premises for the purpose of exhibiting films and video works; (b) censor films and video works; (c) regulate and prescribe safety precautions to be observed in licensed premises; (d) regulate and control cinematographic exhibitions; and (e) perform such other functions as are necessary or expedient for the full discharge of all or any of the functions conferred on it by this Act. It is clear therefore from the purpose of establishing the Board and the duties imposed on it by the Act that the Act is primarily concerned with public exhibition of films, video works and its censorship. This fact is further confirmed by the limitations imposed on Section 17 (1) & (2) by subsection 3 of the section. It says:-
(3) The provisions of subsections (1) and (2) of this section shall not apply to:-
(a) A film or video exhibition in premises to which the public is not admitted.
(b) ………………………………………………..
(c) ………………………………………………..
Premises which is a private dwelling house where the exhibition is not promoted for private gain.
Both sides in this appeal are in agreement that the respondents are ordinary shop owners who sell video cassettes to end users in addition to other types of cassettes such as audio, CD or VCD. There is no affidavit evidence that such video cassettes are exhibited for public viewing in the shops. There is no evidence that the shops are “premises” as defined in the Act. The video cassettes are bought for private viewing in the homes of the purchasers. It is pertinent to note that the definition of ‘premises’ in the Interpretation section of the Act as any house, room, building, garden, shop or place where any film or video work is exhibited, leased, hired to which admission is or may be procured by payment of money or by ticket or by other means or consideration excludes the word ‘sold’. Further, admissions to regular shops such as the shops of the respondents are not procured by payment of money or other consideration. The appellants hinged their argument that the respondents are bound by the provisions of the Act on the ground that the definition of ‘distributor’ in the Act includes persons engaged in the business of selling films and video works. Reading the definition alongside other sections of the Act and Form 2 of the second schedule referred to in Section 25 of the Act shows that retail sellers of video cassettes were not in the contemplation of the Legislators of the Act. Section 25 (2) of the Act provides “that an application for a license for the distribution or exhibition of a film or video work shall be as in Form 2 of the Second Schedule to this Act. Form 2 of Schedule 2 set out the information to be entered in the form. They include the title of the film/video work; running time; classification of the film/video work; censorship certificate number; registration number; date and place of importation; import license (if applicable) etc. It is obvious that this kind of information cannot be within the knowledge of an ordinary shop owner who retails video cassettes bought from a major distributor. The information set out in the form can only be within the knowledge of major distributors who are usually given the monopoly by producers to market their films and video works. The learned Trial Judge was right in looking at Form 2 to come to the conclusion that “the intention of the lawmakers can clearly be seen as targeting what I may call MAIN DISTRIBUTORS…” Contrary to the contention of learned counsel for the appellants that there is nothing in Section 68 (Interpretation section) that warrants the Honourable Court to go outside the said section to look for another interpretation of the word ‘distributor’ as contained in the Decree or to look for the intention of the legislator, there surely is. My analysis of the other sections of the Act has shown clearly that there was such need. In the case of Dantosho v. Mohammed (supra) referred to by appellant’s counsel, Uwaifo JSC observed:-
“…in construing any provision of a statute, a Court is bound to consider any other parts of the statute which throw light upon the intention of the legislature and which may serve to show that the particular provision ought not to be construed as it would if considered alone without reference to such other parts of the statute. ”
Having considered the Statute as a whole I am of the firm view that the learned trial judge was right in his conclusion that the Act did not apply to private sales by ordinary individual sellers. Further the premises of ordinary shop owners who do not exhibit films or video works in their shops within the meaning of Section 17 (2) of the Act do not require to be registered under the Act. I hereby resolve issue 1 in favour of the respondents and against the appellants.
ISSUE2
2. Whether the Federal High Court, Osogbo Judicial Division was right in assuming jurisdiction over the 2nd defendant/appellant against whom no cause of action is disclosed both by the originating summons and the affidavit in support.
Referring to several authorities on the jurisdiction and competence of a court to hear a matter, appellants’ counsel submitted that no cause of action was disclosed against the 2nd appellant both in the originating summons and the affidavit in support and that the 2nd appellant was not a necessary party to the suit. Counsel contended that the lower court erred in not striking out the name of the 2nd appellant as a party to the suit.
I am of the view that the lower court was perfectly right in refusing to strike out the name of the 2nd appellant as a party to the suit. Notwithstanding that the 1st appellant is a juristic person, and the 2nd appellant merely an agent to a disclosed principal; the fact is that the 1st appellant is not a biological person but a metaphysical conception. It cannot act on its own but only through biological persons. The 2nd appellant is its representative in Osogbo. He, in fact perpetrated the act that gave rise to the suit. In the counter affidavit in opposition to the motion to strike out the name of the 2nd appellant as a party to the suit, it was deposed on behalf of the respondents that the 2nd defendant is a necessary party to the case because he is the person collecting money wrongfully from the plaintiffs. A copy of one of the demand letters duly executed by the 2nd defendant was attached as exhibit C. Although the name of the 2nd appellant and the actual action taken by him was not specified in the originating summons and the affidavit in support, by reference to the defendants, the appellants ought to know that he as the representative of the 1st appellant in Osogbo who was the actual person going round insisting on the registration by the respondents is properly included as a defendant. After all, the 1st appellant can only act through persons. Besides when an agent is sent by a principal to take a certain action and the agent acts beyond his lawful instruction, in suing the principal, it is right to join the agent in order to afford both principal and agent full opportunity to defend the agent’s action. Further there was need to join the 2nd appellant so he would be bound by the result of the suit as he is the one going round collecting money wrongfully from the respondents. He is indeed a necessary party in the suit. See Ajayi & Ors v. Jolayemi (2001) 10 NWLR (Pt.722) or 5 SC (Pt.11) 31 or LPELR SC.5/1997
The lower court was right in refusing to strike out the 2nd appellant’s name as a party to the suit in assuming jurisdiction over him. This issue is also resolved against the appellants and in favour of the respondents.
ISSUE 3
Whether the 2nd defendant can made personally liable for the act of the 1st defendant.
On this issue, appellants’ counsel contended relying on the case of HI – Flow Farms Industries Limited vs. University of Benin (1993) 4 NWLR (Pt.290) 719 @ 721 that the 2nd appellant was merely the eyes and ears of the 1st appellant and that the 2nd appellant cannot be made personally liable for an act or omission committed by the 1st appellant. Counsel argued that the lower court cannot compel the 2nd appellant to refund to the respondents the sum of N10,000.00 (ten thousand naira) granted them under relief 3 of the originating summons.
Having found that the 2nd appellant as the perpetrator of the act that gave rise to the suit was a necessary party to the suit, this issue in my view, is of no moment. Judgment has been entered in favour of the respondents against the appellants inter alia for the refund of the N10, 000.00 (ten thousand naira) collected from the respondents as registration or licensing fee. How the appellants choose to refund the money is a matter for the appellants to decide. Judgment was properly entered against the appellants.
ISSUE 4
Whether the appellants were denied the right of fair hearing by the Federal High Court, Osogbo Judicial Division in the hearing of the Originating Summons:-
The appellants contend on this issue that the learned trial judge denied them fair hearing when the court proceeded to hear the case on 23/3/04 after their counsel had protested on 11/3/04 the day of the fixture that he had an earlier fixture in the High Court of Lagos State on that 23/3/04. Appellants’ counsel argued that the lower court should have adjourned the case after hearing the applicants’ counsel on the originating summons to enable him appear and argue his case. More so as the 2nd appellant was in court and reminded the court of counsel’s engagement elsewhere. Instead, counsel submitted, the court went ahead to deliver its ruling same day. Counsel urged us to hold that this amounted to denial of fair hearing and to uphold the appeal.
With all due respect to learned counsel for the appellants, what happened here cannot amount to denial of fair hearing. Counsel was fully aware that the lower court did not grant his request for a date other than the 23rd of March 2004. The case was firmly fixed for hearing on that date. He should have sent a lawyer to hold his brief. If he had done that and after hearing the applicants, the lawyer then requested for adjournment to enable his principal appear to present his case, the lower court would probably have acceded to the request for adjournment. In the record of proceedings of 23/3/04 at page 24, the defence counsel was recorded as absent and that no reason was disclosed to the court for his absence. This clearly is disrespectful to the court. All the allegations by Counsel of having informed the court that he was engaged elsewhere are not reflected in the record of proceedings and this court is bound by the records. Even if the situation was as indicated by counsel, a judge is at liberty to manage his court as he deems fit and once it is shown that parties and their counsel were duly notified of a hearing date, counsel who absents himself from court does so at his own peril.
See the case of INEC v. MUSA [2003] 3 NWLR (Pt. 806) 72: or 1 SC (Pt.1) 106: or LPELR – SC 228/2002. Per Tobi JSC:-
“Fair hearing in essence means giving equal opportunity to the parties to be heard in the litigation before the court. Where parties are given opportunity to be heard, they cannot complain of breach of the fair hearing principle. ”
The appellants were aware that the case was fixed for definite hearing on 23/3/04. The 2nd appellant was in fact present in court. Their counsel chose not to attend court without any official communication to the Court as indicated in the court’s record. They were given the opportunity to be heard. They cannot therefore complain that they were not given fair hearing. In the circumstances, this issue is resolved against the appellants and in favour of the respondents. Having resolved all the issues in this appeal against the appellants, I hold that the appeal lacks merit. It is herby dismissed. The ruling and judgment of Chukwura Nnamani J. (of blessed memory) of the Federal High Court Osogbo Judicial Division in suit No.FHC/OS/CS/20/23 delivered on 11/3/04 and 23/3/04 respectively are hereby upheld with N50,000.00 costs in favour of the respondents.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: I have had the privilege of reading in draft the judgment of my learned brother, CHINWE EUGENIA IYIZOBA, JCA just delivered. I agree entirely with the reasoning and conclusion that this appeal lacks merit and should be dismissed. I accordingly dismiss it. I abide by the consequential orders including the order for costs.
MOORE A. A. ADUMEIN, J.C.A.: My learned brother – IYIZOBA, JCA has meticulously analysed the provisions of the National Film and Video Censors Board Act and has rightly resolved all the issues in this appeal.
I agree with His Lordship that this appeal lack merit and I also dismiss it with the sum of N50,000.00 costs awarded in favour of the respondents.
Appearances
Richard Oma Ahonaruogho, Esq. with P. O. AttahFor Appellant
AND
For Respondent
