NOKIA WEST AFRICA (NIGERIA) LIMITED v. MR. WILLIAMS ORIOHA (A.K.A. 2SHOTZ)
(2016)LCN/8367(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 22nd day of March, 2016
CA/L/1015/2013
RATIO
PRACTICE AND PROCEDURE: CAUSE OF ACTION; THE DEFINITION AND INGREDIENTS OF ‘A CAUSE OF ACTION’
The challenge in this appeal is that the statement of claim filed by the Respondent did not disclose a cause of action. Furthermore, that the statement of claim lack the required particularity required for a claim under the Copyright Act. Generally a cause of action is made up of certain ingredients such as:
a. Cause of complaint
b. A civil right or obligation fit for determination by a Court of law; and
c. A dispute in respect of which a Court of law is entitled to invoke its judicial powers to determine. It consists of every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. See AFOLAYAN V OGUNRINADE (1999) 2 S.C. 70
Cause of action has received judicial attention in a number of cases, it was defined in the case of ABUBAKAR v. B. O. & A. P. LTD (2002) 18 NWLR (Pt. 1066) 319 thus: A cause of action arises from circumstances containing different facts that give rise to a claim that can be enforced in a Court of law, and thus lead to right to sue a person responsible for the existence, either directly or by extension of such circumstances. There must in essence be wrongful act of a party (i.e the party sued), which has injured or given the plaintiff a reason to complain in a Court of law for remedy of consequent damage to the party aggrieved.”
Again in the case of MOBIL PROD. (NIG) UNLTD v. LASEPA (2002) 18 NWLR (Pt. 798) 1 the Apex Court held as follows:
“Once the allegation in the pleadings show a real controversy that were capable of leading to the grant of a relief, the pleading cannot be rightly said to disclose no reasonable cause of action. The weakness of the plaintiffs case is not a relevant consideration when the question is whether or not the statement of claim had disclosed a reasonable cause of action” PER. YARGATA BYENCHIT NIMPAR, J.C.A.
COURT: A CAUSE OF ACTION; WHAT THE COURT MUST CONSIDER IN DETERMINING WHETHER A CLAIM DISCLOSES A CAUSE OF ACTION AND THE ATTITUDE OF THE COURT WHERE A STATEMENT OF CLAIM DISCLOSES NO REASONABLE CAUSE OF ACTION
The law is trite that in considering whether a claim discloses a cause of action, the Court is to consider only the writ and the statement of claim. These are the sources of a cause of action. See COOKEY v FOMBO (2005) 15 NWLR (Pt.947) 182 where the Apex Court held thus:
“It is settled law that when an objection is raised that the statement does not disclose a reasonable cause of action, it is the statement of claim that has to be examined to ascertain whether or not there is a reasonable cause of action.”
The general attitude of the Court is that where a statement of claim discloses no reasonable cause of action and if the Court is satisfied that no amendment however ingenious will cure the defect, the statement of claim will struck out, see DR. IRENE THOMAS v OLUFUSOYE (1986) 1 NWLR (PT.18) 669. PER. YARGATA BYENCHIT NIMPAR, J.C.A.
JUSTICES
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
NOKIA WEST AFRICA (NIGERIA) LIMITED Appellant(s)
AND
MR. WILLIAMS ORIOHA (A.K.A. 2SHOTZ) Respondent(s)
YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment):?This appeal is against the ruling of HON. JUSTICE O. E. ABANG sitting at the Federal High Court, Lagos delivered on the 15th November, 2013 wherein the preliminary objection brought by the Appellant challenging the claim of the Respondent for non – disclosure of a cause of action was dismissed. The Appellant dissatisfied with the ruling filed a Notice of appeal dated 29th November, 2013 filed on the same date which was amended with leave of Court on the 11/5/2015 setting out 6 grounds of appeal.
The brief facts are that the Appellant filed a preliminary objection before the Lower Court challenging the Respondent’s statement of claim on the ground that it did not disclose a cause of action by not particularizing the acts of the Appellant that constituted an infringement of the Respondent’s copy right. The trial Court took the preliminary objection and dismissed it thus this appeal.
Appellant filed its brief of arguments dated 7/5/15 filed on the same day but deemed on the 11/5/15. The Respondent’s brief of arguments dated 4/2/14 was filed on the 28/2/14 and
deemed on the 11/5/15. Briefs were adopted at the hearing of the appeal. The Appellant distilled 6 issues for determination as follows:
A. Whether the Lower Court could have considered Section 6 and 15 of the Copyright Act and other applicable laws and authorities in determining whether a reasonable cause of action for infringement of Copyright had fun disclosed in the statement of claim and determined the preliminary Objection without the requirement for trial.
B. Whether the Respondent could have disclosed a reasonable cause of action for infringement of copyright against the Appellant without pleading materials facts?relating to every element of his alleged cause of action.
C. Whether the allegations in the statement of claim were pleaded with sufficient “particularity” or detail to amount to disclosure of a reasonable cause of action for infringement of copyright against the Appellant
D. Whether it is an element of infringement of copyright that the allegedly infringing article should have allegedly been made in Nigeria or allegedly been imported into Nigeria by the defendant.
E. Whether on construction of the statement of claim, the
respondent failed to plead material facts showing all the elements of an infringement of copyright by the Appellant.
F. Whether having an exclusive right to manufacture or distribute is not entirely different from actually manufacturing or distributing.
The Respondent on his part adopted the issues formulated by the Appellant though grudgingly. I have read the briefs and this appeal being an interlocutory appeal must be cautiously considered to avoid determining issues that are for substantive trial. The issues formulated by the Appellant presents a strong temptation to address them but I shall resist the temptation and deal with the aspect that relates to pretrial. It is therefore expedient to reframe the issues and limit it to the pretrial issue in order to avoid determining the matter at this stage. The relevant question is simply –
“Whether the Respondent has disclosed a cause of action in his statement of claim.’
The different slants put forward by the Appellant shall be considered under this single issue.
?The Appellant’s counsel while defining the term “cause of action” submitted that in order to determine whether a reasonable
cause of action has been disclosed, the plaintiff case must be considered on his pleadings in the light of the applicable laws, IBRAHIM V. OSIM [1988] 3 NWLR (PT 82) 257, CHEVRON (NIG) LTD V LONESTAR DRILLING (NIG) LTD [2007] 16 NWLR (PT 1059) 168, STATE INDUSTRIES PLC V. DEVCOM MERCHANT BANK LTD [2004] 17 NWLR (PT 901) @ 182, OBASANJO v YUSUF [2004] 9 NWLR (PT 877) @ 144. Thereafter, Appellant counsel submitted that in this case, to determine a reasonable cause of action for infringement, Section 6, 15 and 16 of the Copyright Act ought to have been considered by the Lower Court being a preliminary issue which the Lower Court could have handled without going into trial.
Furthermore, Appellant’s counsel argued that a plaintiff must prove every material fact that it is relying on in order to disclose a reasonable cause of action and referred to PHILLIPS v PHILLIPS [1878] 4 QBD 127, AMODU v AMODE [1990] 5 NWLR (PT.150) 356. Appellant contended that the Respondent failed to plead allegations of material fact relating to the infringement of his copyright. That the plaintiff must plead those facts in sufficient detail and with sufficient particulars, referred
to FAWEHINMI v AKILU [1994] 6 NWLR (PT. 351) 387. He submitted that the numerous references to the Appellant in the Respondent’s statement of claim at the Lower Court are too vague to satisfy the requirement of particularity sufficient to disclose a reasonable cause of action for infringement of copyright against the Appellant.
The Appellant’s counsel was also of the opinion that in lieu of Sections 6 and 15 of the Copyright Act, the rights vested by copyright are limited to the control of acts done within Nigeria. That in this case, the Respondent did not plead that the reproductions or copies were made in Nigeria or that the Appellant imported into Nigeria any copies of the Respondent’s work which would have been infringing copies if they had been made in Nigeria. That failure to plead the location where the alleged reproduction occurred is fatal to his attempt to disclose a reasonable cause of action, relied on TATE INDUSTRIES PLC V DEVCOM MERCHANT BANK LTD (Supra), AMODU V AMODE (SUPRA). More so, the Appellant submitted that the fact that the Appellant had the exclusive right to manufacture and distribute the phones wherein the Respondents work was
allegedly copied, does not mean that they actually distributed or sold any of these phones. The Appellant went ahead to state that the Lower Court can only base a finding of reasonable cause of action upon a pleading of the act of distribution and not merely the right to distribute.
In response, the Respondent contends that in determining a reasonable cause of action, the Court must confine itself only to the averments in the statement of claim, he relied on CHEVRON NIG LTD V LONESTAR DRILLING NIG LTD (2007) 7 SC (Pt. 11) 27, OLAWORE V OJO (2006) ALL FWLR (PT. 341) 1382; GOV EKITI STATE V AKINYEMI [2011] 17 NWLR (PT. 1276) 373. He further submitted that for a claim to disclose a reasonable cause of action there must be an enabling law and that the Plaintiff is not mandated to state the particular law. That where an application fails to state the relevant rule it is premised on, the application is still valid, cited AKIBU v ODUNTAN [1992] 2 NWLR (PT.222) 210. The Respondent also contends that he sufficiently pleaded allegations of material facts, giving rise to a reasonable cause of action and that since the claims of the Respondent have not been denied or
controverted by the Appellant, it is not in the place of the Appellant to state that the Respondent has not pleaded material facts in proof of his case. That the case of FAWEHINMI v AKILU (SUPRA) relied upon by the Appellant is not on all fours with the facts and argument of the Appellant because based on the averments in the Respondent’s statement of claim, the Appellant has been linked with the 1st Defendant who violated the Respondent’s copyright to his musical work.
Furthermore, the Respondent submitted that since the Appellant has not denied that it is an agent of the 1st Defendant in Nigeria or that it has exclusive right to distribute phones manufactured by the company, then, the Appellant is liable to the Respondent for infringement of his copyright, he referred to Section?15 of the Copyright Act. That by a combined reading of Section?6 and Section15 of the Copyright Act, it reveals that so far as the infringing copies of the Respondent’s work are found in Nigeria, it does not matter where the infringing act took place. Furthermore, that the Appellant’s non-denial that it is a subsidiary of the 1st Defendant in Nigeria amounts to admission of same, he cited
ADEBIYI v. UMAR [2012] 9 NWLR (PT.
1305) 279 in support. He thereafter urged the Court to affirm the decision of the trial Court.
RESOLUTION:
The challenge in this appeal is that the statement of claim filed by the Respondent did not disclose a cause of action. Furthermore, that the statement of claim lack the required particularity required for a claim under the Copyright Act. Generally a cause of action is made up of certain ingredients such as:
a. Cause of complaint
b. A civil right or obligation fit for determination by a Court of law; and
c. A dispute in respect of which a Court of law is entitled to invoke its judicial powers to determine. It consists of every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. See AFOLAYAN V OGUNRINADE (1999) 2 S.C. 70
Cause of action has received judicial attention in a number of cases, it was defined in the case of ABUBAKAR v. B. O. & A. P. LTD (2002) 18 NWLR (Pt. 1066) 319 thus:
?A cause of action arises from circumstances containing different facts that give rise to a claim that can be enforced in a Court
of law, and thus lead to right to sue a person responsible for the existence, either directly or by extension of such circumstances. There must in essence be wrongful act of a party (i.e the party sued), which has injured or given the plaintiff a reason to complain in a Court of law for remedy of consequent damage to the party aggrieved.”
Again in the case of MOBIL PROD. (NIG) UNLTD v. LASEPA (2002) 18 NWLR (Pt. 798) 1 the Apex Court held as follows:
“Once the allegation in the pleadings show a real controversy that were capable of leading to the grant of a relief, the pleading cannot be rightly said to disclose no reasonable cause of action. The weakness of the plaintiffs case is not a relevant consideration when the question is whether or not the statement of claim had disclosed a reasonable cause of action”
The Respondent filed a writ of summons and a statement of claim seeking the following reliefs from the Appellant and another as follows:
1. 5 Million general damages being damages against the Defendants jointly and severally for the infringement of the copyright.
2. Perpetual injunction against the defendants, their agents,
servants from further infringing on the plaintiff copy right in the Album “Commercial Avenue”
3. An order that the Defendant jointly and severally give account of profits accrued from the sales of Nokia X3 worldwide markets which product was used to infringe the copyright of the plaintiff,
4. N2,000,000,000.00 (Two Billion Naira) being restitution and enhanced?damages suffered by the Plaintiff as a result of the defendants? egregious conduct plus their willfulness.”
The Appellant’s preliminary objection contends that the statement of claim does not disclose a cause of action. The trial Court in its Ruling held:
“I am satisfied that the claim of the plaintiff has disclosed not just a cause of action but also facts which have given rise to the plaintiff to sue the 1st and 2nd defendants. This is because it is not indispute that the 2nd defendant is an agent or subsidiary of the 1st defendant. Beyond this, the 2nd defendant has the exclusive right to distribute phones manufactured by the 1st defendant in Nigeria.
Whether the plaintiff claim comes within the provisions of Section 6 and 15 of Copyright Act is a matter
for trial that the Court will resolve having heard parties on the merit. The plaintiff has a valid claim against the 1st and 2nd defendants, whether the claim will succeed is a different matter entirely.”
The trial Court based its decision on the writ of summons and the statement of claim before the Court. The Appellant raised the preliminary objection without filing its statement of defence. The law is trite that in considering whether a claim discloses a cause of action, the Court is to consider only the writ and the statement of claim. These are the sources of a cause of action. See COOKEY v FOMBO (2005) 15 NWLR (Pt.947) 182 where the Apex Court held thus:
“It is settled law that when an objection is raised that the statement does not disclose a reasonable cause of action, it is the statement of claim that has to be examined to ascertain whether or not there is a reasonable cause of action.”
The general attitude of the Court is that where a statement of claim discloses no reasonable cause of action and if the Court is satisfied that no amendment however ingenious will cure the defect, the statement of claim will struck out, see DR. IRENE
THOMAS v OLUFUSOYE (1986) 1 NWLR (PT.18) 669. The Appellant in taking its objection on the processes before the trial Court before filing its statement of defence has conceded that it is from these two processes, i.e. the writ of summons and the statement of claim that a cause of action must be gleaned. The contention of the Appellant is captured by the six issues distilled for determination which basically snowballs into one simple question of whether the Respondent has disclosed a cause of action in his statement of claim. A statement of claim is simply factual averments of the plaintiff’s claim not the evidence with which he is bound by law to present in proof. Usually a statement of claim by practice is presented factually and concise, in a summary form to reflect the complaint of the claimant. The purpose is to give the defendant notice of the grounds of the claim. All relevant facts must be pleaded. A statement of claim therefore is a notice and it is not in the statement of claim that the claimant is expected to bare out all evidence in proof of his allegations.
?Pleadings simply erect the framework which is like a skeleton that is fleshened up by
evidence to give it a form under the enabling law for the reliefs sought for. The enabling law gives birth to the action and becomes the source of right of action. The action is founded on such enabling law which governs the reliefs of the Claimant.
The point made by the Appellant is that the Lower Court failed to consider Sections 6 and 15 of the Copyright Act in determining whether there was cause of action in the statement of claim herein. It is not in doubt that a claim is one seeking to enforce or protect a right and such a right is usually grounded in a statutory enactment. Is the Court expected to consider statutory provisions in deciding whether the statement of claim discloses a reasonable cause of action? I think not. The right inured to the claimant under the law should generally hover around but in determining cause of action, the Court should not go into the detailed provisions of the law at that preliminary stage. The law grounding a claim is not generally pleaded nor the evidence with which the claimant will establish his right to the reliefs sought. It will not be appropriate for the trial Court to make a categorical statement on whether
the law is complied with or not at the stage of determining a preliminary objection taken to strike out a statement of claim. Generally, a Court gives room for a claimant to amend his claim and if such a claim can be remedied by amendment then it is saved. Delving into a statutory provision at that preliminary stage will unwittingly lead the Court into determining substantive issues at the preliminary stage. It is also not the law for the trial Court to consider detailed provisions of the Act in determining whether the cause of action is made out or not. The authorities cited by the Appellant are not applicable.
The second is the lack of pleading each and every material fact relating to every element of the cause of action. I agree with the Appellant when he relied on the holding of the Court in the case of DRUMMOND – JACKSON V BRITISH MEDICAL ASSOCIATION (1970) 1 WLR 688 thus:
“For a statement of claim to disclose a reasonable cause of action, it must set out the legal rights of the plaintiffs and the obligations of the defendant. It must then go on to set out the facts constituting the infraction of the plaintiffs legal rights or failure of the
defendant to fulfil his obligation in such a way that if there is no proper defence the plaintiff will succeed in the relief or remedy he seeks.”
The interesting point made in the above quotation is that the legal right of the plaintiff should be set out not the legal provision. The Respondent in this case duly set out his right to the copyright in his musical album with “Come Again Remix’ “Fear Fear” and “Abia Anthem”. He further alleged that the Copyright was infringed by the Defendants before the trial Court wherein they infused the songs on their Nokia X3 Phone model which was being sold in Nigeria and worldwide. What other right should the pleadings include? If at the end of trial, the Respondent is not able to establish the ingredients of an infringement of copyright then the claim fails. If the pleadings are taken as it is without a defence by the Appellant, it will definitely entitle the Respondent to the reliefs sought.
The Appellant has a misunderstanding of the need to plead legal right as against the provisions of the Act under which the claim is based. Whether there is adequate particularity or not can only be determined
at the end of trial when the totality of the case is considered by the Court. The provision of the law will be placed against the evidence presented by the Respondent at assessment and evaluation stage and it is therefore, too early to bring them on the front burner at this stage. The Appellant is putting the cart before the horse. The claim of the Respondent must not be water tight before it goes to trial moreso when there is the right of amendment. Consequently, the other aspects or issues formulated cannot be resolved so as not to foist a situation of fiat accompli on the trial Court, see U.C.C.N. v. DANGOTE IND. LTD [2006] 6 NWLR (Pt. 980) Pg. 516.
On the whole, I agree with the trial judge that there is a cause of action to warrant trial. The ruling of HON. JUSTICE O. E. ABANG delivered on the 15th November, 2013 is hereby affirmed. The appeal lacks merit and is hereby dismissed
N30,000 costs is awarded in favour of the Respondent.
AMINA ADAMU AUGIE, J.C.A.: I have read in draft the leading Judgment just delivered by my learned brother, YARGATA BYENCHIT NIMPAR, JCA, and I agree with his reasoning and conclusion. He dealt extensively
with issues raised by parties, and covered the field.
I will only add a few words on the meaning of “cause of action” and “reasonable cause of action”. A cause of action means the following-.
i. A cause of compliant;
ii. A civil right or obligation for determination by a Court of law:
iii. A dispute in respect of which a Court of law is entitled to invoke its judicial powers to determine;
iv. Consequent damages;
v. Every fact which would be necessary for the Plaintiff to prove, if traversed in order to support his right to the Judgment of the Court. It does not comprise every piece of evidence that is necessary to be proved;
vi. All those things necessary to give a right of action whether they are to be done by the Plaintiff or a third person; and
vii. It is a factual situation, which enables one person to obtain a remedy from another in Court in respect of Injury.
See A.G. Fed. v. Abubakar (2007) 10 NWLR (Pt. 1041) 1, A.G. Fed. v. ANPP (2003) 12 SCNJ 67, Nwokedi V. Egbe (2005) 9 NWLR (Pt. 930) 293, Mobil Oil Plc. V. D.E.N.R. Ltd. (2004) 1 NWLR (Pt. 853) 142.
A “cause of action” is also the entire set of
circumstances giving rise to an enforceable claim. It is the fact or combination of facts, which give rise to a right to sue and it consists of two elements – the wrongful act of the Defendant, which gives the Plaintiff his cause of complaint, and the consequent damage – see Adesokan v. Aderegolu (1997) 3 NWLR (Pt.493) 261 SC, Aghanelo v. UBN (2000) 4 SC (Pt.1) 233, Oduntan V. Akibu (2000) 7 SC (pt.II) 106.
?To determine whether a cause of action is disclosed or not, the Court is enjoined to examine the pleadings, and once the statement of claim raises some issues of law or fact calling for determination by the Court, the mere fact that the case is weak and not likely to succeed at trial is not ground for striking it out.
A reasonable cause of action means a cause of action with some chances of success. For a statement of claim to disclose same, it must set out legal rights of the Plaintiff and obligations of Defendant; then go on to set out facts constituting infraction of Plaintiffs legal right or failure of the Defendant to fulfill his obligation in such a way that if there is no proper defence, the Plaintiff will succeed in the relief or remedy he
seeks. See – Rinco Construction Co. V. Veepee Ind. Ltd. (2005) 3-4 SC 1, Combined Trade Ltd. V. All States Trust Bank (1998) 12 NWLR (Pt.576) 5 and Dantata V. Mohammed (2002) 5 SC 1. Thus, at this stage, the issue is not whether the allegation is true or not, but whether the facts averred to, disclose a cause of action, that is – some wrong that the Respondent has suffered that the Appellant must answer for, and if they fail to put up a proper defence, the Respondent will ultimately succeed.
In this case, my learned brother said it all in the lead Judgment, and I do not intend to belabor the point. I adopt his reasoning as mine, and do also affirm the Ruling of the Lower Court. I also abide by the consequential Orders in the lead Judgment including the order on costs.
JAMILU YAMMAMA TUKUR J.C.A.: I have read the judgment just delivered by learned brother, YARGATA BYENCHIT NIMPAR JCA, I also dismiss the appeal and abide by the consequential order made therein.
Appearances
Oladapo Ademola with him, Temilola Abdul (Miss)For Appellant
AND
Marcellus OnahFor Respondent
