REGD TRUSTEES OF ASSOCIATION OF HOTEL PROPRIETORS OF EDO STATE v. COPYRIGHT SOCIETY OF NIG. LTD/GTE & ORS (2020)

REGD TRUSTEES OF ASSOCIATION OF HOTEL PROPRIETORS OF EDO STATE v. COPYRIGHT SOCIETY OF NIG. LTD/GTE & ORS

(2020)LCN/15362(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Monday, September 28, 2020

CA/B/498/2016

RATIO

BURDEN OF PROOF: WHETHER A NEGATIVE ASSERTION MAY BE PROVEN

I think it is important to reiterate the settled position of the law that it is he who asserts that must prove what he asserts. However, an assertion can be affirmative or positive or negative but the mere fact that an assertion is negative does not ipso facto render it true without any further proof. In other words, a person who makes a negative assertion cannot take it for granted, unless it was admitted by the other party, that it is the truth merely because it was a negative assertion and then fold his hands akimbo and expect the other party to struggle to disprove the negation assertion. No, the law does not work that way! See Nnaji V. Agbo (2006) 8 NWLR (Pt. 981) 199; Fayemi V. Oni (2010) LPELR – 4145 (CA); Awuse V. Odili (2005) 16 NWLR (Pt. 952) 416.
It would appear that following the decision of the Court in Aiyeomo Remi V. Akinrodoye Ebun Sunday & Ors (1999) 1 NWLR (Pt. 613) 92, and heavily relied upon by the Appellants, a party that makes a negative assertion, generally considered as incapable of proof, bears no burden to prove it and that it is the other party that is under a burden to disprove it by positive facts. But the law has since moved forward and far away from this position. However, in law a party who makes an assertion, be it affirmative, positive or negative, bears the corresponding burden to prove it as asserted. This is where the distinction between the legal burden on a party to prove his case, which does not shift, and the evidential burden on any of the parties to introduce at least prima facie evidence in support of their assertions, be in positive or negative. See Alliance for Democracy V. Fayose (2005) 10 NWLR (Pt. 932) 154 @ p. 188. See also Alade V. Aborishade (1966) SCNLR 398; Ochoma V. Lenosi (1965) NMLR 321 @ p. 323; Motanya V. Elinwa (1994) 7 NWLR (Pt. 356) 252; Rt Hon Tarzoor V. Ortom Ioraer (2015) LPELR – 25975 (CA).
Thus, in law negative assertion may still be proved. In Chukwuka V. Nduka (2008) LPELR – 3985 (CA) @ pp. 26 – 27, this Court had per Alagoa JCA (as he then was but later JSC) stated inter alia thus:
“And therein lies the error that the Hon. Tribunal allowed itself to make by coming to the conclusion that the onus of proving that the election did not hold was not on the 1st Respondent since his assertion that it did not hold was in the negative and therefore, the onus must be on the Appellant who is positively asserting that the election took place…..something more positive should be done by a party who is alleging that an election did not take place to indeed show that no election in fact took place.”
See also Tukur V. Gov of Gongola State (1988) 1 NSCC (Vol. 19) 30 @ p. 38; Rt Hon Tarzoor V. Ortom Ioraer (2015) LPELR – 25975 (CA). PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

INTERPRETATION OF STATUTE: WHETHER A COURT IN NIGERIA MAY RELY SOLELY ON DECISIONS FROM FOREIGN JURISDICTION IN INTERPRETING WORDS OF AN ENACTMENT

In law, where the language of a statute is plan, clear and unambiguous, the duty of Court is to interpret the language in its grammatical meaning to convey the intention of the law maker. The Court has no Jurisdiction or competence to go outside the statute in search of interpretation convenient to it. SeeBasinco Motors v. Woermann-line (2009) All FWLR, Pt. 485; 1634 at Pgs 1653-1654, where the Supreme Court stated inter alia thus:
“The following are the principles governing the interpretation of statutory provision-:

It is the intention or the Legislature that should be sought and same is to be ascertained from the words of the statute alone and not from other statutes; b. mere the words used in the provisions of a statute are clear, simple and unambiguous, they should be given their simple, natural and ordinary meaning; c. The Court is not concerned with the result or its interpretation, that is, it is not within the Court’s province to pronounce on the wisdom or otherwise of the statute but only to determine its meaning; d. The Court must not import into a Legislation words that were not used by the Legislature and which will give a different meaning to the text or the statute by the legislature, e. The Court must not bring to bear on the provisions of the statute, its prejudices as to what the law should be but rather should interpret the law from the clear words used by the Legislature; f. The Court must not amend the statutes to achieve a particular object or result.”
See also Kupolati V. Oke (2009) All FWLR (Pt. 486) 1858 @ p. 1898; Abubakar V. Yar’Adua (2009) All FWLR (Pt. 475) 1 @ p. 120; I.B.W.A V. Imano (Nig) Ltd (1988) (1988) 3 NWLR (Pt.85) 633.

It appears to me, having calmly read through the relevant provisions of the Copyright Act, that the words “performs” or “causes to be performed” in Section 15(1)(g) of the Copyright Act which the Appellants urged the lower Court to interpret are clear and unambiguous and therefore, does not required any extrapolation or recourse to other provisions of the said Act or any other provisions of any other legislation to find out and give effect to the intention of the legislature in enacting this provision.
The Court below had in its wisdom and following the principles of statutory interpretations as it understood it held that the word ‘perform’ or ‘causes to be performed’ as used in Section 15 (1)(g) of the Copyright Act does not refer ‘live’ performance. This to my mind is the crux of issues one and two as to whether this view of the Court below was wrong as contended by the Appellant or correct as contended by the Respondents and whether in holding the above view the Court below had ignored judicial precedence and thus behaved rascally?
I have taken time to read through all the decided cases relied upon by the Appellant in the contention that the Court below failed not only in interpreting the said provisions but also acted with judicial impertinence in ignoring earlier decided cases on the issue in point by the Supreme Court and this Court. These cases are: Abubakar V. Attorney-General of the Federation (2008) All FWLR (Pt 441)870 @ p. 906; Olalere Obadara V. The President, Ibadan West District Council (1964), All NLR 336 @ p. 342; Minister for Justice & Attorney- General, Federation V. Attorney-General, Lagos State (2013) All FWLR (Pt 704) l @ p. 336.
Now, it is true that it is not the correct way of interpreting the provisions of any of our enactments by looking outside the concerned enactment to decisions on the meaning of an English Statute with different wordings. However, since the indisputable origin of the Nigerian Legal System and Statute book is the Common Law and Statutes of General application, it would appear, and it has been held to be so in a plethora of decided cases of both the Supreme Court and this Court, that Foreign decisions on English Statute will naturally carry very great weight where the wordings is identical.

WHETHER ISSUE OF FACTS ON WHICH THE PARTIES ARE AD IDEM MAY REQUIRE FURTHER PROOF

My Lords, in considering issues one, two and three for determination together, I bear in mind that issue of facts on which the parties are ad idem require no further proof and are taken as having been established. It is also the law that facts admitted by either party of the averments of the other party also need no further proof. It is equally well accepted that facts in a pleading of one party which are not specifically traversed but are generally or evasively traversed are also deemed as having been admitted by the other party. See also Hashidu V. Goje 2 EPR P.790 @ p. 836. See also Oversea Construction Company Nig. Ltd. V. Creek Enterprises Nig. Ltd (1985) 3 NWLR (PT.407)40; Adesoji Aderemi V. Adedire (1966) NMLR 398; Nnameka Emegokwe V. James Okadigbo (1973) 4 SC 113; Woluchem v. Gudi (1981) 5 SC 291; Iwuoha V. NIPOST (2003) 8 NWLR (Pt. 822) 308; Akpapuna & Ors V. Obi Nzeka & Ors. (1983) 2 SCNLR 1, (1983) 7 SC 1; Omoboriowo v. Ajasin EPR (Vol. 3) 488 @ p. 511; Iniama v. Akpabio (2008)17 NWLR (Pt. 1116) 225 @ p. 309. PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

Before Our Lordships:

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

Tinuade Akomolafe-Wilson Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Between

REGISTERED TRUSTEES OF ASSOCIATION OF HOTEL PROPRIETORS OF EDO STATE APPELANT(S)

And

1. COPYRIGHT SOCIETY OF NIGERIA LTD/GTE 2. PRINCE BIODUN EGUAKHIDE 3. COMMISSIONER OF POLICE RESPONDENT(S)

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the Federal High Court, Benin Judicial Division, Coram; A. M. Liman J., in Suit No: FHC/B/137/2014: Registered Trustees of Association of Hotel Proprietors of Edo State V. Copyright Society of Nigeria Ltd/GTE &Ors., delivered on 21/10/2016, in which the claims of the Appellants as Claimant against the Respondents as Defendants were dismissed for lacking in merit.

The Appellant was dissatisfied with the said Judgment and had promptly appealed to this Court vide a Not iceof Appeal filed on 1/11/2016 on five Grounds of appeal at pages 243 – 247 of the Record of Appeal. The Record of Appeal was duly compiled and transmitted to this Court on 30/11/2016. The Appellant’s brief was filed on 6/4/2017 but deemed properly filed on 3/4/2019. The 1st and 2nd Respondents’ brief was filed on 9/5/2019 but deemed properly filed on 23/9/2019. The 3rd Respondent’s brief was filed on 8/5/2019 but deemed properly filed on 15/9/2020. The Appellant’s reply brief was filed on 6/12/2019 but deemed filed on 15/9/2020.

At the hearing of this appeal on 15/9/2020, R. I. D. Okezie Esq., learned counsel for the Appellant, with Miss O. C. Okechukwu and Miss J. O. Abu, adopted the Appellant’s brief and Appellant’s reply brief as their arguments and urged the Court to allow the appeal and grant the claims of the Appellant against the Respondents. On his part, Enahoro Aghomon Esq., learned counsel for the 1st and 2nd Respondents adopted the 1st and 2nd Respondents’ brief and urged the Court to dismiss the Appeal and affirm the judgment of the Court below. The 3rd Respondent though duly served with hearing notice on 2/9/2020, was not represented by counsel at the hearing of this appeal. However, having filed the 3rd Respondents’ brief, the Court deemed same as having been duly adopted by them.

By a Further Amended Originating Summons filed on 11/6/2015 pursuant to the Order of the Court below made on 15/6/2015, the Appellant as Claimant seeking the determination of the following questions, namely:
1. Whether having provisions of Section 15(1) (g) of the Copyright Act a person can be said to have infringed on the copyright of an artist’s work in which copyright subsists by that person merely possessing a television video [DVD and/or music sets in his hotel or place of business which he uses to watch or play the recorded cassette, CD and/or DVD of an artist in which copyright exist, recorded cassette CD and/or DVD the purchased or obtained from the artist.
2. Whether the Plaintiff members who do not have facilities to perform or cause to be performed, for the purposes of trade or business or as supporting facility to a trade or business. any work in which Copyright subsists could be held liable for breaching the provisions of Section 15(1) (g) of the Copyright Act
3. Whether the word “performs” and phrase “causes to be performed” as used only to the live performance or delivery and/or any mode of visual or acoustic presentation of the work of an artist in which copyright subsists.
ALTERNATIVELY
4. Whether having regard to the provisions of Section 38(1)-(5) of the Copyright Act, the 2nd Defendant is a fit, proper and competent person to enter, inspect, examine the building or premises of the Plaintiff members alleged to have infringed copyright under the Act and demand registration fees and penalties from them on behalf of the 1st Defendant.
5. Whether the entrance of the Defendants and their agents into the building or premises of: 1. Decency Continental Hotel Limited, Benin City owned by Mr. Kenneth Ogbiti & Ors and 2. Wesley Hotels Limited Benin City all members of the plaintiff for purposes of inspecting and examining them and their subsequent arrests of the MD and manager of the two Hotels respectively for alleged infringement of copyright under the Act without compliance with the provisions of Section 25(1) of the Act is not unlawful, unconstitutional, null and a flagrant breach of their respective fundamental rights as protected by the 1999 Constitution as amended.
6. Whether having regard to the provisions of Section 38(1)-(5) of the copyright Act, the 3rd Defendant or any agent appointed by him is a fit, proper and competent person to prosecute any charge in Court in respect of alleged breach of any provision of the Copyright Act.
7. Whether the Defendants are not liable in damages for their entry and alleged inspection, arrest, detention and threatened prosecution of Mr. Ken Ogbiti (MD Continental Hotel Limited Benin City) and Mr. Osahon Omo Amadasun (Manager BiBi Hotels limited, Benin City); and unlawful entry, arrest and detention of other members of the Plaintiff without due and strict compliance with the provisions of the Act.

If the answer to question 1, 2, 4 & 6 is negative and questions 3, 5 & 7 above are in the affirmative, then the Plaintiff claims and severally on behalf of themselves and their numerous members against the Defendants as follows:-
(a) A declaration that Section 15(1) (g) of the Copyright Act is only applicable to a situation where there is a live performance or deliver and/or visual or acoustic presentation of an artist’s work in which Copyright subsists.
(b) A declaration that members of the Plaintiff who do not have facilities to engage, perform or cause to be performed, for the purpose of trade or business or as supporting facility to a trade or business, any work in which copyright subsists are not liable of the Infringement of the provisions of Section 15(1) (g) or any other section of the Act whatsoever relating to the infringement of copyright under the Act.
(c) A declaration that the arrest, detention and ongoing and threatened prosecution of Mr. Ken Ogbiti (MD Decency Continental Hotel Limited, Benin City) and Mr. Osahon Omo Amadasun (Manager BiBi Hotels Limited, Benin City) and incessant intimidation, harassment, arrests and detention of other members of the plaintiff by the Defendants are illegal, unlawful, unconstitutional, wrongful and Constitutes an infraction of the fundamental rights of the Plaintiff’s members protected by the Constitution of the Federal Republic of Nigeria.
(d) A declaration that the 2nd Defend ant is not a fit, proper and competent person to perform or carry out the duties of an inspector as contemplated by Sections 38(1) -(5) of the Act.
(e) A declaration that the entrance of the 2nd Defendant and his agents into the building or remises of: 1. Decency Continental Hotel Limited Benin City owned by Mr. Kenneth Ogbiti & Ors and 2. Wesley Hotels Limited, Benin City all members of the Plaintiff, for purposes of inspecting and examining them for alleged infringement of copyright under the Act without compliance with the provisions of Section 25(1) of the Act is an infraction of the fundamental right of the above named members of the Plaintiff, unlawful, Illegal unconstitutional, null and void and of no effect whatsoever.
(f) A perpetual order of injunction restraining the Defendants either by themselves, agents or privies from further intimidating, harassing, arresting or unlawfully detaining the Plaintiff and their members on any matter relating to any alleged breach of the provisions of Section 15(1) (g) of the Copyright Act henceforth to the extent that the Plaintiff and its members continue to refrain/abstain from engaging in any live performance or deliver and/or visual or acoustic presentation of an artist’s work in which Copyright subsists.
(g) N1,000,000.00 general damages for the Defendants unlawfully intimidation, harassments, arrests and detention of members of the Plaintiff for alleged breach of Section 15(1 ) (g) of the Copyright Act. See pages 80 – 120; 206 – 207 of the Record of Appeal.

BRIEF STATEMENT OF FACTS
The gist of the case of the Appellant, as Claimant before the Court below, as can be gleaned from the affidavit and documentary Exhibits relied upon before the Court below was that sometimes in 2014, the 2nd Respondent acting as an agent of the 1st Respondent issued out letters of demand on members of the Appellant requiring them to come and register their hotel businesses with them and obtain licenses from them or else they would be prosecuted in Court for violating of the Copyright Act. The Appellants wrote their counsel to the 1st and 2nd Respondents explaining to them that their members are not engaged in and do not have facilities to engage in live reproduction of the works of artists that are registered with the 2nd Respondent. However, ignoring the above explanations, the 1st and 2nd Respondents enlisted the services of the 3rd Respondent and his agents and without complying with the provisions of Sections 25(1) of the Copyright Act, forcefully entered, searched the business premises of the members of the Appellants and forcefully removed several items from their business premises on the ground that they had refused to register with the 1st and 2nd Respondents, which they claimed was in violation of the provision of Section 15 (1) (g) of the Copyright Act. Faced with this unlawful actions of the Respondents, the Appellants commenced the Suit against the Respondents before the Court below requiring it to interpret Section 15(1)(g), Section 38 (1)-(5) and Section 25(1) of the Copyright Act against the Respondents.

On the other hand, the gist of the 1st and 2nd Respondents’ case as can be gleaned from their counter affidavit and documentary Exhibits relied upon before the Court below was that in line with the provisions of Section 15 (1) (g) of the Copyright Act, Cap C.28, Laws of the Federation of Nigeria, 2004 as amended, the 2nd Respondent on behalf of the 1st Respondent requested members of the Appellant to obtain music copyright license for the music they use in their trade or business and/or in support of such trade or business. The Appellant refused to comply with the request and rather proceeded to commence a Suit against the Respondents before the Court below.

On his part, the gist of the 3rd Respondents’ case as can be gleaned from the counter affidavit and documentary Exhibits relied upon before the Court below was that 20/10/2014 and 10/11/2014 respectively, the 1st and 2nd Respondents petitioned the Police on a criminal violation of the Copyright Act of Musical Art without license to the office of the 3rd Respondent against the Appellant, which is an offence punishable under Section 20(1)(a) and (c) of the Copy Right Act, leading to the Police invitation of the persons complained against for investigation. At the conclusion of the investigation, criminal charges were preferred against the suspects in the Federal High Court. However, while the said criminal charges were pending, the Appellants commenced the Suit against the Respondents before the Court below.

The parties filed and exchanged affidavit and counter affidavit evidence as well as written addresses of their counsel and on 6/72015 and 21/10/2016 respectively adopted and re – adopted their written addresses. On 21/10/2016, the Court below delivered its judgment dismissing the claims of the Appellant against the Respondents in its entirety, hence this Appeal. See pages 209 – 242 of the Record of Appeal.

My Lords, because of the huge numbers of issues for determination in this appeal all bordering on almost the same sets of facts, I intend to reproduce some of the affidavit evidence of the parties here and now as would aid my analysis under the distinct issues as I proceed to consider these issues later in this judgment.

In the Affidavit in support deposed to by one Roland Nosakhare Osunde, it was stated inter alia as follows:
6. That between 2013 – 2014, the 1st & 2nd Defendants served several letters on most of our members in which they claimed that the usual business activities of our respective members were caught by the web of Section 15(1) (g) of the Nigeria Copyright Act, Cap C28, Laws of the Federation of Nigeria 2004 to the extent that they use musical works of artists in which Copyright subsists to enhance their business interests. Copies of the said letters are hereby attached and tendered as Exhibits RIDO 3 – 12.
13a. That the Defendants have gone ahead to arraign Mr. Kenneth Ogbiti (MD of Decency Continental Hotel Limited), a member of the Plaintiff and Osahon Omo Amadasun (Manager of BiBi Hotels Limited) before this honorable court and their trials are ongoing and pending before this Honorable Court.
15. That the members of our Association are Posh & Serene Hotels that engage in the business of lodgment of customers and provision for them of other entertainment activities that do not include or provide facilities for the performance, or deliver and/or visual or acoustic presentation of an artist’s work in which Copyright subsists.
16. The 2nd Defendant acting as an agent of the 1st Defendant has been going round Edo State claiming that once a person uses television or radio sets in his business premises which has capacity to play the musical work of any artist whosoever, the person would be in breach of Section 15(1) (g) of the Copyright Act, if he fails to registered with the 1st Defendant.

In response, the 1st and 2nd Respondents had in their counter affidavit deposed to by the 2nd Respondent, Prince Biodun Eguakhide stated inter alia as follows:
5. That paragraphs 8, 9 and 10 of the affidavit are false and in further response to same, I state that the changes in the sums of monies demanded by COSON referred to in paragraph 8, 9 and 10 of the said affidavit in support of the originating summons were assessments based on best of judgment for the refusal of the plaintiff to complete the self-Assessment Forms provided by COSON for the purposes of licensing. The self-Assessment Form for Hotels and Similar Establishment and the Tariff for hotels approved and agreed to by the Nigerian copyright Commission (NCC), the Nigerian Tourism Development Commission (NTDC), Copyright Society of Nigeria, (COSON) Hotel Personnel Services Association of Nigeria (HOPSEA) is attached as Exhibit B.
8. That in response to paragraph 13, I state that if anybody has been arrested or prosecuted by the police for any criminal violation of the Copyright Act, such a person ought to go and defend such action. I further state that apart from Mr. Kenneth Ogbiti who has been charged to Court for copyright infringement, no other members of the Plaintiff listed in paragraph 13 of the Plaintiff’s Affidavit was arrested, detained and or listed for arraignment in Court. It was on the strength of a petition that the said Mr. Kenneth Ogbiti was invited by the Police in the State Command. I am NOT aware that the said Mr. Ogbiti was detained by the Police. It is NOT true to the best of my knowledge that Mr. Roland Osunde, Mr. Julius Edogun, Mr. Joel Adamagbon and Chief Sunday Osayande Idada were arrested and or detained by the Police or listed for arraignment as averred in paragraph 13 of the Plaintiff’s affidavit.

11. That I admit paragraph 16 only to the extent that I have been making it known that publicly performing musical works and sound recordings for the purpose of business without a licence to so do from the 1st Defendant constitutes a breach of Section 15 (1) (g) of the Copyright Act, whether such is through “live versions” or performance of recorded versions through television or radio sets.

On his part, the 3rd Respondent had in a counter affidavit deposed on his behalf by one Inspector Samuel Iredia stated inter alia as follows:
4. That, the 3rd Defendant/Respondent received a petitions dated 2/10/2014, 10/11/2014 on infringement of Copyright without license, an offence contrary to Section 20 (1) (a) and (c) of the Copyright Act, Cap. C28 LFN 2004 of the petition attached as Exhibit ‘A’.
5. That based on this allegations one Uchenna, Isiekwere Ikechukwu, Monday Samuel and Kenneth Ogbiti were invited for interrogation and their premises were searched and incriminating items/exhibits were recovered. They made statement in their own handwriting and were immediately released on bail without detention.
6. That a charge was thereafter preferred against them in the Federal High Court, Benin City. Copy of the charge sheet attached as exhibit.

It was on the strength of the above affidavit, counter affidavit evidence and documentary Exhibits of the parties and on the submissions of their counsel that the Court below delivered its judgment on 21/10/2016 dismissing the claims of the Appellant against the Respondents, holding inter alia as follows:
“…..communication must be to the public which section does not include that adjective live. Therefore, it is not relevant to the word “performs” or the phrase “causes to be performed”…. See the English Court decision in Performing Rights Society Ltd V. Camelo (1936) 3 All ER 557….I do believe that the above passages are very useful and in understanding the legislative intend of Section 15(1)(g) of the Copyright Act….Some of its members are already standing trial before the Federal High Court…this is my position that since there is already charge before the Court, the issue of competence of prosecuting criminality should be raised and resolved there, and I so hold. However, it is necessary to reiterate that Section 38(3) of the Copyright Act does not supersede provision of Section 23 of the Police Act which subject to Sections 74 and 211 of the Constitution LFN 1999 empowers any Police Officer to conduct in persons all prosecution before any Court…” See pages 209 – 242 of the Record of Appeal.

ISSUES FOR DETERMINATION
In the Appellant’s brief, five issues were distilled as arising for determination from the grounds of appeal namely;
1. Whether by virtue of the provisions of S.15 (1) (g) of the Copyright Act, members of the Appellant who do not engage in live reproduction or own facilities capable of being used to engage in live reproduction of the work of any artist in which copyright subsists could be said to have breached the provisions of that section such that they would be required to either obtain licenses from the 1st and 2nd Respondents or be liable of prosecution?
2. Whether the lower Court’s reliance on foreign journals and foreign decided cases in its findings on the meaning of the provisions of S. 15 (1)(g) of the Copyright Act, despite its attention being drawn to the following cases:

Abubakar V. Attorney-General of the Federation (2008) All FWLR (Pt. 441)870 @ P. 906; Olalere Obadara V. The President, Ibadan West District Council (1964), All NLR 336 @ p. 342; Minister for Justice & Attorney- General, Federation V. Attorney-General, Lagos State (2013) All FWLR (Pt 704) 1 @ p. 336 is not an affront to its responsibilities under the well-established principle of judicial precedence?
3. Whether having regard to the state of affidavit evidence before the lower Court, and the express provisions of S. 38(1)-(5) of the Copyright Act, the 2nd Respondent was shown to be a fit, proper and competent person to carry out the functions or duties of a Copyright Inspector as contemplated by Section 38 (1)-(5) of the Copyright Act?
4. Whether having regard to the provisions of S. 38 (1)-(5) of the Copyright Act, the 3rd Respondent and/or his agents can rightly be said to qualify as Copyright Inspectors, as the lower Court found, regard being had of the real intention of the law makers in that section of the Act?
5. Whether the entrance of the Respondents into the business premises of members of the Appellant to inspect, seize business properties belonging to them without, first, obtaining an order of Court permitting same, is not a violation of the provisions of S. 25(1) of the Copyright Act and a flagrant breach of their protected rights under the 1999 Constitution?

In the 1st and 2nd Respondents’ brief, five issues were also distilled as arising for determination this appeal, namely:
1. Whether Section 15(1)(g) of the Copyright Act, CAP C28, LFN 2004, can be construed with such limitation as to make it apply only to where a person, without license or authorization, engages in or causes only “live” performance of any work in which copyright subsists? (Distilled from Ground 1)
2. Whether the lower Court relied on foreign journals and foreign decisions in refusing to limit the application of Section 15 (1) (g) of the copyright Act to “live” performances only; and if yes, whether such reliance by the lower Court were wrong, and occasioned a miscarriage of justice? (Distilled from Ground 2 )
3. Whether in the circumstances of this case, the lower Court could have properly found that the 2nd Respondent was not a fit, proper and competent person to enter, inspect and examine the building or premises of the Appellant’s members alleged to have criminally infringed on Copyright? (Distilled from Ground 3)
4. Whether pursuant to Section 38 (1) – (5) of the Copyright Act, CAP C28, LFN 2004, the Police are prohibited or excluded; incompetent or under any restriction to inspect, investigate and prosecute an offence under the Copyright Act? (Distilled from Ground)
5. Whether in the light of the full circumstances of this case, the 1st and 2nd Respondents could be held liable to the Appellant’s members for the purported inspection, arrest, detention and unlawful prosecution of its members? (Distilled from Ground)

In the 3rd Respondent’s brief, the five issues as distilled as arising for determination in the Appellant’s brief were noted and adopted and in addition one other was distilled as arising for determination in this appeal, namely;
“Whether the trial Court was right in the evaluation before decisions were reached on crucial points?”

My Lords, I have given due considerations to the affidavit, counter affidavit and documentary Exhibits of the parties as in the Record of Appeal. I have also reviewed the submissions of counsel in their respective briefs in the light of the findings and decisions of the Court below in the judgment appealed against and it does appear to me that the five issues for determination, though seemingly whooping, as distilled in the Appellant’s brief are the apt issues for determination in this Appeal, a consideration of which would invariably involve the due consideration of all the equally whooping five issues as distilled in the 1st and 2nd Respondents’ brief and the sole issue as distilled in the 3rd Respondent’s brief. However, I shall consider issues one and two together, issues two and three together and issue five alone.

ISSUES ONE AND TWO
Whether by virtue of the provisions of S.15 (1) (g) of the Copyright Act, members of the Appellant who do not engage in live reproduction or own facilities capable of being used to engage in live reproduction of the work of any artist in which copyright subsists could be said to have breached the provisions of that section such that they would be required to either obtain licenses from the 1st and 2nd Respondents or be liable of prosecution? AND
Whether the lower Court’s reliance on foreign journals and foreign decided cases in its findings on the meaning of the provisions of S. 15 (1)(g) of the Copyright Act, despite its attention being drawn to the following cases: Abubakar V. Attorney-General of the Federation (2008) All FWLR (Pt 441)870 @ p. 906; Olalere Obadara V. The President, Ibadan West District Council (1964), All NLR 336 @ p. 342; Minister for Justice & Attorney – General, Federation V. Attorney-General, Lagos State (2013) All FWLR (Pt 704) 1 @ p. 336 is not an affront to its responsibilities under the well – established principle of judicial precedence?

APPELLANT’S COUNSEL SUBMISSIONS
On his issues one and two argued together, learned counsel for the Appellant had submitted that the word “performs” and the phrase “causes to be performed” as used in Section 15 (1) (g) of the Copyright Act refers to only a situation where the work of an artist in which copyright subsists is performed, reproduced or delivered live by any person for purposes of trade or business or as a supporting facility to a trade or business and contended that it does not connote or include the possession of a television, video/DVD and/or music sets in one’s hotel or place of business which he uses to watch or play the recorded cassette, CD and/or DVD duly purchased or obtained from the artist. Counsel referred toSection 15(1) (a)-(g) of the Copyright Act of Nigeria and relied on Kupolati V. Oke (2009) All FWLR (Pt.486) 1858 @ p. 1898.

It was also submitted that it is a fundamental principle of interpretation of statutes that the primary objective in the construction of statutes is to discover the law makers’ intention which is deducible from the language used and contended that the ordinary and plain meaning of the word “performs” is “to act” or “acts” “to reproduce” “to recreate” and “to demonstrate” and urged the Court to hold that all these can only be possible through a “live” performance, production and/or demonstration of those works an the Court below ought to have been bound by the earlier decisions of the Apex Court and this Court. Counsel referred to Sections 26(1),(2) & 51 of the Copyright Act; ‘The Word web Dictionary by Antony Lewis (First Edition)’; ‘The American Heritage Dictionary of the English Language (Fifth Edition) by Houghton Mifflin’ and relied on Abubakar V. Yar’Adua (2009) All FWLR (Pt. 475)1 @ p. 120; Basinco Motors V. Woermann-line (2009) All FWLR (Pt. 485) 1634 @ pp. 1653-1654; IBWA V. Imano (Nig) Ltd (1988) SCNJ 326; Olalere Obadara V. The President, Ibadan West District Council (1964)1All NLR 336 @ p. 342; Minister of Justice & Att. Gen. of the Federation V. Att. Gen. of Lagos State (2013) All FWLR (Pt.704).l @ p. 38; Haske V. Magaji (2009) All FWLR (Pt.461).887 @ p. 905; Osakue V. Fed. College of Education (Tech.) Asaba (2010) All FWLR (Pt.522)1601 @ p. 1625; Okonjo V. Dr Mudiaga Odje & ors (1985)10 SC 267 @ pp. 268-269.

It was further submitted that Section 6 of Nigeria’s Copyright Act is subject to the provisions in the Second Schedule of the Act which made provisions for exemptions from copyright control and thereby exempting the Appellants from the illegal actions of the Respondents and urged the Court to so hold and to set aside the perverse findings of the Court below and to allow the appeal and grant the reliefs claimed by the Appellants against the Respondents. Counsel referred to Section 6 (1)(0) of the said Second Schedule to the Copy Rights Act.

1ST AND 2ND RESPONDENTS’ COUNSEL SUBMISSIONS
On his issues one and two, learned counsel for the 1st and 2nd Respondents’ had submitted that in the interpretation of statutes the Court is not import into a legislation words that were not used by the legislature and which will give a different meaning to the text of the statute by the legislature and contended that in law Copyright is infringed by any person who without the license or authorization of the owner of the copyright “performs” or carries out or does or executes or discharges or brings about or accomplishes or fulfills or works or “causes to be performed” or carried out or done or executed or discharged or brought about or accomplished or fulfilled or worked for the purposes of trade or business or as a supporting facility to a trade or business, any work in which copyright subsists and urged the Court to hold that if the legislature could have qualified the word “performance” under this Section 26 of the Copy Rights Act with “live” but did not qualify the word “performance” with “live” under Section 15 of the Copyright Act, then it was the intention of the legislature not to have so qualified it under Section 15. Counsel referred to Sections 15; 26 and 51 of the Copyright Act Cap C.28 LFN 2004; Black’s Law Dictionary, 9th Edition; Black’s law Dictionary, the Centenary of 1891 – 1991, 6th Edition @ p. 1137; United Nations Agency for Intellectual Property, World Intellectual Property Organization (WIPO) publication No. 909 (E) ISBN 987-92805-1265-6; and relied on DANGANA V. USMAN (2013) 6 NWLR (Pt. 1349) 50 @ pp. 80 – 81; Basinco Motors V. Woermann- Line (Supra); Awolowo V Shagari (1979)6 – 9 SC 51.

It was also submitted that the Court below was right to have refused an interpretation that limits the meaning of performance under Section 15 (1) (g) of the Copyright Act only to “live” performances and contended that it was not relevant to the interpretation of the word “performs” or the phrase “causes to be performed to include the word ‘live’ and urged the Court to hold that where there is a paucity or dearth of legal authority on any matter, recourse is usually had to jurisdictions that have statute of similar application where no precedent exist within the body of the local decision and that at any rate with or without the foreign judicial authorities, the Court below would have arrived at the same decision based on the reasons adduced by it and to dismiss the appeal and affirm the correct judgment of the Court below.

3RD RESPONDENT’S COUNSEL SUBMISSIONS
On issues one and two, learned counsel for the 3rd Respondent had submitted that the Court below extensively weighted the evidence before it, evaluated it and arrived at correct judgment as it was its duty so to do and contended that the appellate Court would therefore, not interfere with or disturb the correct Judgment of the Court below and to dismiss the appeal and affirm the correct judgment of the Court below. Counsel referred to Section 15(1)(g) of the Copy right Act which traced its origin to the BERNE CONVENTION (1886 – 1971), THE UNIVERSAL COPY RIGHT CONVENTION (1957 – 1971), WIPO PERFORMANCES AND PHONOGRAMS TREATY 1996 and TRIPS AGREEMENT (1994) and relied on GABRIEL ADEKUNLE OGUNDEPO & ANOR V. THOMAS ENIYAN OLUMESAN (2012)203 LRCN 163; NWOSU V BOARD OF CUSTOMS & EXERCISE (1988) 5 NWLR (Pt, 93) 225; AFOLABI & ORS V. SOGUNRO & ORS (2012) 4 – 5 SC 160; WOLUCHEM V. GUDI (1981) 5 SC 291; OKEOWO V. AG. OGUN STATE (2010) 5 -7 SC (Pt.II) 129; Osuji V. EKEOCHA (2009) 6-7 SC 91.

APPELLANT’S COUNSEL REPLY SUBMISSIONS
In his reply submissions, learned counsel for the Appellant merely rehashed and reiterated his earlier submissions in the Appellant’s brief, which is not the purpose and purport of a reply brief. The reply brief, which must be succinct and respond to new points or fresh issues raised in the Respondent’s brief, is not and cannot be an avenue for the Appellant to re – argue his appeal or merely to have second bite at the cherry. An Appellant’s Reply brief is certainly not one to further adumbrate or even to further explain the submissions already canvassed in the Appellant’s brief.
The reply brief is for the serious business of answering to new points or fresh issues raised in the Respondent’s brief which were not covered by the submissions in the Appellant’s brief. It need not and ought not to be filed as just a matter of course even where there is nothing new or fresh in the Respondent’s brief to respond to by the Appellant. The thinking that unless a reply brief is filed, even where it is completely unnecessary, it would mean that the Respondent has had the last word is not true and must therefore, be discouraged. The appeal process is not just about who had the last word but in whose favor is the evidence and the law relevant to the issues in contention between the parties in the Appeal. See Order 19 Rules 5 (1) of the Court of Appeal Rules 2016, where it is provided thus:
“The Appellant may also, if necessary, within fourteen days of service on him of the Respondent’s brief, file and serve or cause to be served on the Respondent a reply brief which shall deal with all new points arising from the Respondent’s brief.”
See Olafisoye V. FRN 2004 1SC Pt. 11 27; Ikine V. Edjerode (2001) 12 SC (Pt. 11) 94; Longe V. FBN (2010) 2 – 3 SC 61; Okpala V. Ibeme (1989) 2 NWLR (Pt. 102) 208; Ajileye V. Fakayode (1998) 4 NWLR (Pt. 545) 184; Agwasim V. Ejivumerwerhaye (2001) 9 NWLR (Pt. 718) 395; Registered Trustees, Ikoyi Club 1938 V. Mr. Timothy Ikujuni (2019) LPELR – 47373 (CA) I have gone through the gamut of the reply brief of the Appellant and I find that it failed to meet the requirements of a reply brief. Indeed, it brought nothing worth anything to the table in this Appeal that has not already been submitted upon in the Appellant’s brief. In the circumstances therefore, I hereby un-hesitantly discountenance the Appellant’s brief in its entirety as going to no issue in this Appeal.

However for the avoidance of doubt and in the larger interest of justice, let me review here the submissions in the Appellant’s Reply brief. It was submitted for the Appellant in reply that the Respondents’ submission further confirmation to the ambiguous nature of that word “performs” as used in Section 15(1) of the Copyright Act and contended that the Copy Rights Act refers to a live reproduction or performance of an artist’s work subject to the Act without more and urged the Court to so hold and to set aside the wrong interpretation by the Court below and to allow the appeal and set aside the perverse Judgment of the Court below. Counsel referred to Sections 26(1) & (2); 28 (a) & (b); 28(e) and 51 of the Copy Rights Act; Section 116 of the Evidence Act 2011; and relied on Kupolati V. Oke (2009) All FWLR (Pt. 486) 1858 @ p. 1903; Martin Schroder & Company V. Major & Company Nigeria Limited (1989) LPELR – 1843; Olojede & Anor V. Olaleye & Anor (2012) LPELR – 9845; Roderick Oneh V. Veronica Obi & Ors (1999) 7 NWLR (Pt. 611) 487 @ p. 499; Torti V. Ukpabi (1984) SC 370 @ p. 392.

RESOLUTION OF ISSUES ONE AND TWO
My Lords, in considering issues one, two and three for determination together, I bear in mind that issue of facts on which the parties are ad idem require no further proof and are taken as having been established. It is also the law that facts admitted by either party of the averments of the other party also need no further proof. It is equally well accepted that facts in a pleading of one party which are not specifically traversed but are generally or evasively traversed are also deemed as having been admitted by the other party. See also Hashidu V. Goje 2 EPR P.790 @ p. 836. See also Oversea Construction Company Nig. Ltd. V. Creek Enterprises Nig. Ltd (1985) 3 NWLR (PT.407)40; Adesoji Aderemi V. Adedire (1966) NMLR 398; Nnameka Emegokwe V. James Okadigbo (1973) 4 SC 113; Woluchem v. Gudi (1981) 5 SC 291; Iwuoha V. NIPOST (2003) 8 NWLR (Pt. 822) 308; Akpapuna & Ors V. Obi Nzeka & Ors. (1983) 2 SCNLR 1, (1983) 7 SC 1; Omoboriowo v. Ajasin EPR (Vol. 3) 488 @ p. 511; Iniama v. Akpabio (2008)17 NWLR (Pt. 1116) 225 @ p. 309.

Now, Section 15(1) (a)-(g) of the Copyright Act of Nigeria provide as follows:-
(1) Copyright is infringed by any person who without the license or authorization of the owner of the Copyright:-
(a) does or causes any other person to do an act, the doing of which is controlled by Copyright;
(b) imports or causes to be imported into Nigeria, any Copy of a work, which, if it had been made in Nigeria would be an infringing copy under this Section of this Act;
(c) exhibits in public any article in respect of which Copyright is infringed under paragraph(a) of this subsection;
(d) distributes by way of trade, offers for sale, hire, or otherwise or for any purpose prejudicial to the owner of the Copyright, any article in respect of which Copyright is infringed under paragraph (a) of this subsection;
(e) makes or has in his possession plates, master tapes, machines, equipment or contrivances used for the purpose of making infringed copies of the work;
(f) permits a place of public entertainment or of business to be used for a performance in the public of the work, where the performance constitutes an infringement of the Copyright in the work, unless the person permitting the place to be so used was not aware, and had no reasonable ground for suspecting that the performance would be an infringement of the Copyright;
(g) Performs or causes to be performed, for the purposes of trade or business as supporting facility to a trade or business, any work in which Copyright subsists.”
In law, where the language of a statute is plan, clear and unambiguous, the duty of Court is to interpret the language in its grammatical meaning to convey the intention of the law maker. The Court has no Jurisdiction or competence to go outside the statute in search of interpretation convenient to it. SeeBasinco Motors v. Woermann-line (2009) All FWLR, Pt. 485; 1634 at Pgs 1653-1654, where the Supreme Court stated inter alia thus:
“The following are the principles governing the interpretation of statutory provision-:

It is the intention or the Legislature that should be sought and same is to be ascertained from the words of the statute alone and not from other statutes; b. mere the words used in the provisions of a statute are clear, simple and unambiguous, they should be given their simple, natural and ordinary meaning; c. The Court is not concerned with the result or its interpretation, that is, it is not within the Court’s province to pronounce on the wisdom or otherwise of the statute but only to determine its meaning; d. The Court must not import into a Legislation words that were not used by the Legislature and which will give a different meaning to the text or the statute by the legislature, e. The Court must not bring to bear on the provisions of the statute, its prejudices as to what the law should be but rather should interpret the law from the clear words used by the Legislature; f. The Court must not amend the statutes to achieve a particular object or result.”
See also Kupolati V. Oke (2009) All FWLR (Pt. 486) 1858 @ p. 1898; Abubakar V. Yar’Adua (2009) All FWLR (Pt. 475) 1 @ p. 120; I.B.W.A V. Imano (Nig) Ltd (1988) (1988) 3 NWLR (Pt.85) 633.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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See Abubakar V. Attorney-General of the Federation (2008) All FWLR (Pt. 441)870 @ p. 906; Olalere Obadara V. The President, Ibadan West District Council (1964), All NLR 336 @ p. 342; Minister for Justice & Attorney – General, Federation V. Attorney-General, Lagos State (2013) All FWLR (Pt 704) 1 @ p. 336. See also Bank of England v. Vagllans (1891) AC 107.
However, whilst a Court in Nigeria should be wary of relying solely on decisions from foreign jurisdiction in interpreting words, which are dissimilar to the words used in our enactment, it is an accepted practice that where on the point in issue there is a dearth or paucity of decided cases, as it sometimes do happen, there is nothing illegal or despicable for the Court faced with such circumstances to refer to and if relevant rely on decisions from foreign jurisdiction to get the point in issue resolved.
The principle of stare decisis is a well settled principle in our legal jurisprudence. It helps to ensure consistency in the development of the law so much so that litigants similarly situated received similar decisions from the Courts to engender confidence and certainty in the law. Thus, a Court in the lower run of the hierarchy of Court in this Country is obligated, not a matter of choice at all, to follow earlier decisions of the Courts on the higher rungs of the hierarchy of Court except where the earlier decision can be genuinely, I use this word with utmost seriousness and emphasis, distinguished from the facts of the latter case. Indeed, it a fearful thing for a Court to ignore, and subsequently be accused of impertinence and rascality, earlier decided cases of higher Courts on the issue in point before it. See Osakue V. Fed. College of Education (tech) Asaba (2010) All FWLR (Pt.522)1601. See also Okonjo V. Dr Mudiaga Odje & ors (1985)10 SC 267.
I have taken time to read through the provisions of the Copyright Act, particularly Sections 15, 26 and 51 and it does appear to me that the offence created under Section 15(1)(g) of the Copyright Act is a complete one within the provisions of that subsection coupled with the fact that the word ‘performs’ or ‘causes to be performed’ as used therein presents no difficulty or ambiguity in its proper interpretation by the Courts. The bone of contention here is that the Appellant contends that due reference to the provisions of Sections 26 (2) and 51 of the Copyright Act would show that the word ‘performs’ or ‘causes to be performed’ as used in Section 15 (1) (g) of the said Act refers to and is qualified by the word ‘live’ performance as in the provisions of Sections 26(2) and 51 of the said Act. The Respondents would countenance none of this and had rather contended that the Court below was right when it held that the provision of Section 15(1)(g) of the said Act, without the word ‘live’ was deliberately done by the legislature to make it inapplicable there under.
Having read through these provisions and duly considered the submissions of counsel to the parties in the light of the interpretation in the judgment of the Court below, I am completely in agreement with the contention of the Respondents, and as was correctly in my view interpreted by the Court below that the offence created under Section 15 (1)(g) of the Copyright Act does not require the word ‘live’ to qualify the word ‘performs’ or causes to be performed’ to be complete. In other words, there is absolutely no need to interpret the word ‘perform’ or causes to be performed’ to include ‘live’ performance. In my view, and I so hold, if the legislature had intended to create an offence under Section 15(1)(g) of the said Act by ‘live performance’ it would have easily and readily done so as it did specifically in the provisions of Sections 26(2) and 51 of the said Act, but having not done so, I do not think it is within the jurisdictional competence of the Court to add to the clear and unambiguous words used in that Section. It is my firm view that such an addition, not intended by the legislature, would do violence to the said provision and is thus better avoided by the Court. For instance, see the provision of Section 26(2) of the Copyright Act to the effect that:
“In this Section, performance includes….(c) a live performance…”
I cannot therefore, but agree with and wholeheartedly endorse the views of the Court below when it stated inter alia thus:
“Applying the grammatical rule in the construction of Section 15 (1) (g) with respect to the words “perform” or “caused to be performed” it would seem very obvious that the insertion into Section 15(1) (g) of the word “live” will wreck incalculable violence to the Section … Section 15(1) (g) does not qualify performance by the adjective “live”. Therefore, it is not relevant to the interpretation of the word “performs” or the phrase “caused to be performed. See pages 234 – 235 of the Record of Appeal.
In my finding therefore, the reference to one foreign decision and some foreign materials and conventions by the Court below, after it had correctly interpreted and made up its mind on the provisions of Section 15(1)(g) of the Copyright Act, as not including the word ‘live’, did not in any way adversely affect neither the sound reasoning nor the correct decision of the Court below. I also do not find any impertinence or disregard to the earlier decisions of the Supreme Court and this Court by the Court below in arriving at the correct decision on the interpretation of the very clear and unambiguous words ‘Perform’ or ‘Causes to be Performed’ as used in Section 15(1)(g) of the Copyright Act. Now, does the exemption provided under Sections 6 (iii) and (vii) of the Nigerian Copyright Act and Paragraph 6(1)(o) of the Second Schedule to the said Act apply to protect and exempt the Appellant in the circumstances of this case? Having taken a very liberal view of these exemptions, in the interest of the Appellant, I find that to communicate the works to the public free of charge alone is not enough to constitute the exemptions under these provision. To qualify for this exemption therefore, the communication to the public free of charge must in addition be “By any club whose aim is not for profit making.”
There is also the nagging question whether or not the ‘profit making ‘is in reference to the communication of the work to the public free of charge or to the Club making the communication of the work to the public? Thus, if the profit making is in reference to the communication then the Appellant would be right to contend as they did that they are not in breach of Section 15(1)(g) of the said Act since they have not been shown to be charging any fees or making use of the work for any profit making. However, if the profit making is in reference is to the Club making the communication of the work to the public then the further question would be; are the Appellants, being Hotels any club whose aim is not for profit making? If they are not, then the Respondent would be right to contend that the communication of the work to the public by the Appellants is not covered by the exemptions since the Appellants are not clubs whose aim is not for profit making.
So, which of the interpretations being urged upon this Court by the parties is the correct interpretation of the provisions of Paragraph 6(1)(o) of the Second Schedule to the Nigerian Copyright Act? The two conditions for the application of the exemption created under Paragraph 6(1)(o) of the Second Schedule to the Act, are;
a. No fees charged for the communication of the work to the public
b. By a Club whose aim is not profit making.
So would a Hotel qualify for this exemption? In other words, is an Hotel an organization whose aim is not for profit making as envisaged under Paragraph 6(1)(o) of the Second Schedule to the Act, even where no fees are charged for the communication of the work to the public? I think not! On the contrary, it is my view, and I so hold, that the communication of musical works to the public by an Hotel even where no fees are charged by the Hotel enhances the business and profitability of the Hotel business and therefore, takes it outside the purview or realm and or benefit of this exemption. Consequently, I hereby resolve issues one and two against the Appellants in favor of the Respondents.

ISSUES THREE AND FOUR
Whether having regard to the state of affidavit evidence before the lower Court, and the express provisions of S. 38(1)-(5) of the Copyright Act, the 2nd Respondent was shown to be a fit, proper and competent person to carry out the functions or duties of a Copyright Inspector as contemplated by Section 38 (1)-(5) of the Copyright Act?
AND
Whether having regard to the provisions of S. 38 (1)-(5) of the Copyright Act, the 3rd Respondent and/or his agents can rightly be said to qualify as Copyright Inspectors, as the lower Court found, regard being had of the real intention of the law makers in that section of the Act?

APPELLANT’S COUNSEL SUBMISSIONS
On issues three and four argued together, learned counsel for the Appellant had submitted that the 2nd Respondent is not a fit, proper and competent person to act as a Copyright Inspector as envisaged by Section 38(1)-(5) of the Copyright Act and contended that the legislature intended the enforcement of the rights provided in Section through Copyright Inspectors to be appointed directly by the Commission and not by a third party and urged the Court to hold that the Copy Rights Act not also intend that an appointed inspector should appoint another inspector and to set aside the perverse findings of the Court below to that effect and allow the appeal. Counsel relied on Bamisile V. Osasuyi (2008) All FWLR (Pt.423) 1300 @ pp. 1338 – 1339; Adamu V. Akukalia 2008 All FWLR (Pt. 428)352 @ p. 408; Alhaji Atiku Abubakar V. Att. Gen. of the Federation (2008) All FWLR (Pt. 441)870 @ p. 908; CCB (Nig.) Plc V. Att. Gen., Anambra State (1992) 8 NWLR (Pt. 261) 528; Ibrahim V. INEC (1999) 8 NWLR (Pt.614)334.

It was also submitted that from the provisions of Section 38(1)-(5) of the Copyright Act, it is apparent that the only persons authorized by the Act to enforce the provisions made therein are Copyright Inspectors and contended that the law had also made provisions as to how such inspectors are to emerge and urged eth Court to hold that under the law only the Copyright Commission established under the Act can appoint such inspectors whose duties are extensively enumerated in Sub-Section (2), (3) & (5) of the Act and to set aside the perverse findings of the Court below on the competence of the 2nd and 3rd Respondents and to allow the appeal. Counsel referred to Section 38(1) of the Copy Rights Act.

It was further submitted that in law the onus of proof does not lie on the person who makes a negative allegation in that where a negative allegation is made against a party the onus is on the party who ascertains the positive version of the allegation to prove the positivity of the allegation by producing a document to show that the negative allegation was wrong and unfounded particularly where such positive assertion was such that can be proved by the production of documentary evidence and urged the Court to set aside the findings of the Court below founded on the misconceived onus of proof and to allow the appeal and grant the reliefs of the Appellants against the Respondents. Counsel relied on Aiyeomo Remi V. Akinrodoye Ebun Sunday & Ors (1999) & NWLR (Pt. 613) 92.

1ST AND 2ND RESPONDENTS’ COUNSEL SUBMISSIONS
On his issues three and four, learned counsel for the 1st and 2nd Respondents’ had submitted that the Court below was right when it held that the issue of appointment of the 2nd and 3rd Respondents are matters which are based on contentious facts and are therefore, not suitable for determination in an Originating Summons and urged the Court to hold that since that decision was correct an appellate Court ought to be circumspect and ought not to interfere with that finding since it has not been shown to be perverse and to dismiss the appeal and affirm the correct decision of the Court below. Counsel relied on Kodilinye V. Mbanefo Odu (1935) 2 WACA 336; Onyia Nwagwu Ngwu & Ors V. Ani Ozougwu & Ors (1999) 13 NWLR (Pt. 363) 512.

3RD RESPONDENT’S COUNSEL SUBMISSIONS
On issues three and four learned counsel for the 3rd Respondent had submitted that S.38 (1)-(5) of the Copyright Act does not in any way prevent the 3rd Respondent from carrying out the duties of arrest, investigation and prosecution neither did the Act becomes superior to the Constitution and other relevant Statutes as Police Act which give powers to the Police to arrest, investigate and prosecute in any form of criminal allegations and urged the Court to hold that the powers of the 3rd Respondent was not in any way adversely affected by the Copy Rights Act and to dismiss the appeal and affirm the correct decision of the Court below on the powers of the 3rd Respondent under the law. Counsel referred to Section 4 of the Police Act; Section 20(1) (a) and (C) of the Copy Right Act; Section 12 of Criminal Procedure Act; Section 315 of the Constitution of Nigeria 1999 (as Amended); and relied on FAWEHINMI V. AKILU & TOGUN (1987) 4 NWLR (Pt.797); CHIEF GANI FAWEHINMI V. IGP & ORS (2003) INCC 414 @ p. 416; R. V. Commissioner of Police of the Metropolis ex parte Blackburn (1968) 2 QB 118 @ p. 136.

APPELLANT’S COUNSEL REPLY SUBMISSIONS
In his reply submissions, learned counsel for the Appellant had submitted that neither the 1999 Constitution nor the Police Act allotted absolute and/or unlimited powers to the Nigeria Police Force with respect to detecting, enforcing and prosecuting crimes and criminals but are limited by law and restated the law that a person alleging a negative fact is not expected to prove the negative fact as it is the party alleging the positive that is in a position to produce document to prove same and urged the Court to hold that since the Appellants merely alleged that the 2nd Respondent was not appointed they cannot be made to produce a non-existent document to prove such fact. Counsel referred to Section 214(2) (b) of the 1999 Constitution; Section 4 of the Police Act; Section 38(1) of the Copyright Act; and relied on Governor of Kaduna State & 2 Ors V. Lawal Kagoma (1982) 4-6 SC 87 @ pp. 107-108; Sudan Interior Mission V. Mrs. Bose Bolaji & Ors (2013) LPELR-24709; Aiyeomo Remi V. Akinrodoye Ebun Sunday & Ors (1999) 8 NWLR (Pt. 613) P. 92.

RESOLUTION OF ISSUES THREE AND FOUR
My Lords, the crux of these issues is simply whether the Appellant who had alleged that the 2nd and 3rd Respondents were neither fit to carry and were they properly appointed as Copyright Inspectors proved their assertions or whether since the assertions were negative in nature the Appellant was relieved of proving it and thus shifting the burden of disproving it unto the 2nd and 3rd Respondents who asserted the positive to the contrary that they were properly so appointed by the Copyright Commission of Nigeria?
Now, by Section 38(1)-(5) of the Copyright Act, it is provided thus:
“(1) The Commission may appoint copyright inspectors as it may deem fit.
(2) (a) enter, inspect and examine at any reasonable time any building or premises which he reasonably suspects is being used for any activity which is an infringement of Copyright under this Act;
(b) arrest any person who he reasonably believes to have committed an offence under this Act;
(c) make such examination and inquiry as may be necessary to ascertain whether the provisions of this Act are complied with..
(d) require the production of the register required to be kept under Section 14 of this Act and to inspect, examine or copy it;
(e) require any person who he find in such building or premises to give such information as it is in his power to give in relation to any purpose specified in this Act;
(f) carry out such examination, test or analysis within or outside the premises as is required to give effect to any provision of this Act and to make instant photographs where such examination, test and analysis or photograph is carried out within the premises, and such examination, test and analysis or photograph shall be required to be endorsed by the occupier of the premises or his agent but a refusal by an occupier to endorse any document containing the result of an examination, test, analysis or photograph shall not invalidate the result or finding of the examination, test, analysis or photograph; and g. exercise such other powers as the Commission may delegate to it to give effect to the provisions of this Act
(3) A Copyright Inspector may prosecute, conduct or defend before a Court any charge, information, complaint or other proceedings arising under this Act
(4) Any person who obstructs a copyright inspector in the performance of his duties is guilty of an offence and liable on conviction to a fine not exceeding N500 or to imprisonment for a term not exceeding three months or to both such tine and imprisonment.
(5) A Copyright Inspector shall have all the powers, rights and privileges of a police officer as defined under the Police Act and under any other relevant enactment pertaining to the investigation, prosecution of defence or a civil or criminal matter under this Act. ”
The Appellants had alleged that the 2nd and 3rd Respondents are not a duly appointed Copyright Inspector and therefore, were not competent to have carried out the duties of a Copyright Inspector under the law. However, curiously the Appellants rather than prove their allegations had left it for the Respondents to disprove their allegation on the ground that it was a negative assertion which in law requires no proof by the Appellants. I think it is important to reiterate the settled position of the law that it is he who asserts that must prove what he asserts. However, an assertion can be affirmative or positive or negative but the mere fact that an assertion is negative does not ipso facto render it true without any further proof. In other words, a person who makes a negative assertion cannot take it for granted, unless it was admitted by the other party, that it is the truth merely because it was a negative assertion and then fold his hands akimbo and expect the other party to struggle to disprove the negation assertion. No, the law does not work that way! See Nnaji V. Agbo (2006) 8 NWLR (Pt. 981) 199; Fayemi V. Oni (2010) LPELR – 4145 (CA); Awuse V. Odili (2005) 16 NWLR (Pt. 952) 416.
It would appear that following the decision of the Court in Aiyeomo Remi V. Akinrodoye Ebun Sunday & Ors (1999) 1 NWLR (Pt. 613) 92, and heavily relied upon by the Appellants, a party that makes a negative assertion, generally considered as incapable of proof, bears no burden to prove it and that it is the other party that is under a burden to disprove it by positive facts. But the law has since moved forward and far away from this position. However, in law a party who makes an assertion, be it affirmative, positive or negative, bears the corresponding burden to prove it as asserted. This is where the distinction between the legal burden on a party to prove his case, which does not shift, and the evidential burden on any of the parties to introduce at least prima facie evidence in support of their assertions, be in positive or negative. See Alliance for Democracy V. Fayose (2005) 10 NWLR (Pt. 932) 154 @ p. 188. See also Alade V. Aborishade (1966) SCNLR 398; Ochoma V. Lenosi (1965) NMLR 321 @ p. 323; Motanya V. Elinwa (1994) 7 NWLR (Pt. 356) 252; Rt Hon Tarzoor V. Ortom Ioraer (2015) LPELR – 25975 (CA).
Thus, in law negative assertion may still be proved. In Chukwuka V. Nduka (2008) LPELR – 3985 (CA) @ pp. 26 – 27, this Court had per Alagoa JCA (as he then was but later JSC) stated inter alia thus:
“And therein lies the error that the Hon. Tribunal allowed itself to make by coming to the conclusion that the onus of proving that the election did not hold was not on the 1st Respondent since his assertion that it did not hold was in the negative and therefore, the onus must be on the Appellant who is positively asserting that the election took place…..something more positive should be done by a party who is alleging that an election did not take place to indeed show that no election in fact took place.”
See also Tukur V. Gov of Gongola State (1988) 1 NSCC (Vol. 19) 30 @ p. 38; Rt Hon Tarzoor V. Ortom Ioraer (2015) LPELR – 25975 (CA).
In the instant appeal, it is my view, and I so hold, that for the Appellant to merely allege that the 2nd and 3rd Respondents were not properly appointed as Copyright Inspectors without more is not enough to shift the evidential burden to the 2nd Respondent to disprove that assertion to show that he was properly so appointed. It is my further view therefore, on the strength of the affidavit evidence of the parties, that the evidential burden to prove the assertion by the Appellant that the 2nd and 3rd Respondents were not properly appointed as Copyright Inspector by the Nigerian Copyright Commission, not even made a party to the proceedings before the Court below by the Appellants, was on the Appellant, a burden which it failed woefully to discharge.
Specifically, as regards the 3rd Respondent, he is a Commissioner of Police and clearly not a Copyright Inspector and is shown to have been brought into this case by the Appellant by reason of the investigations of criminal allegations made against some members of the Appellant vide petitions written to him by the 1st and 2nd Respondents to enforce the criminal laws of the land, which in my view is within his constitutional mandate. He would thus require no appointment by any of the Respondents or even the Nigerian Copyright Commission to carry out his duties as conferred on him under the Police Act and all other laws enabling him on that behalf. See Section 4 of the Police Act. Resolve issues three and four against the Appellants in favor of the Respondents. See Section 214(2) (b) of the Constitution of Nigeria 1999 (as Amended). See also Section 4 of the Police Act. In the circumstances therefore, the Appellant having failed to prove its allegation against the 2nd and 3rd Respondents, issues three and four are hereby resolved against the Appellant in favour of the Respondents.

ISSUE FIVE
Whether the entrance of the Respondents into the business premises of members of the Appellant to inspect, cease business properties belonging to them, arrest and detain them without, first, obtaining an order of Court permitting same, is not a violation of the provisions of S. 25 (1) of the Copyright Act and a flagrant breach of their protected rights under the 1999 Constitution?

APPELLANT’S COUNSEL SUBMISSIONS
On issue five, learned counsel for the Appellant had submitted that the entrance of the Respondents into the business premises of the members of the Appellant to seize, detain and inspect documents or any property belonging to the said members of the Appellant without complying with the provisions of Section 25(1) of the Copyright Act, is an infringement of the fundament rights of those Appellants members to own properties and their fundamental rights to liberty and privacy as a enshrined in the 1999 Constitution of the FRN and contended that in law a person performing the function of a Copyright Inspector is expected and required to follow due process by following to the latter the procedure as highlighted or stipulated in that Section 25(1) of the Act and urged the Court to hold that in the absence of any order of the Court first obtained that actions of the 2nd and 3rd Respondents were unlawful, illegal, unconstitutional and amounted to an infraction of their protected right under Chapter 4 of the 1999 Constitution. Sections 34, 35 and 37 of the 1999 Constitution and the Court below ought to have so held and granted the reliefs as claimed by the Appellants against the Respondents and to allow the appeal and set aside the perverse findings of the Court blow and grant the reliefs claimed by the Appellants against the Respondents. Counsel relied on Bamisile V. Osasuyi (Supra); Adamu V. Akukalia (Supra); Alhaji Atiku Abubakar V. Att. Gen. of the Federation (Supra).

1ST AND 2ND RESPONDENTS’ COUNSEL SUBMISSIONS
On his issue five, learned counsel for the 1st and 2nd Respondents’ had submitted that the provisions of Section 25(1) of the Copy Rights Act were inapplicable to this case in that the police could validly prosecute copyright offences under the Criminal Code Act, Chapter 48 with or without any order of Court and contended that at the time of the alleged arrest and seizure there was not pending case between the parties to invoke the provisions of Section 25(1) of the Copy Rights Acts and urged the Court to hold that the proper course of action should have been by enforcement procedure for fundamental right and not by mere Originating Summons and to hold further that actions of the Respondents did not in any way amounted to any breach of their rights as the Respondents acted within their legal powers and rights as permitted them by law and to dismiss the appeal for lacking in merit and affirm the Judgment of the Court below. Counsel referred to Section 25 of the Copyright Act; The Fundamental Rights (Enforcement Procedure) Rules, 2009; Order II Rules 2 and 3 FREP Rules 2009 and relied on UNIVERSITY OF CALABAR V. ESIAGA (1997) 4 NWLR (Pt. 502) 719; E.F.C.C V. AKINGBOLA (2015) 11 NWLR (Pt. 1470) 249 p. 289.

3RD RESPONDENT’S COUNSEL SUBMISSIONS
On issue five, learned counsel for the 3rd Respondent had submitted that the Respondents did not in any way violate the right of the Appellants since the Appellant’s premises were searched and incriminating exhibits were found and subsequently temporally seized for purpose of prosecution and urged then Court to so hold and to dismiss the appeal and affirm the correct Judgment of the Court below. Counsel referred to Section 10 of the Criminal Procedure Act; Section 24 of Police Act; and Section 12 of the Administration of the Criminal Justice Act 2015.

APPELLANT’S COUNSEL REPLY SUBMISSIONS
In his reply submissions, learned counsel for the Appellant had submitted that the wordings of Section 25 of the Copyright Act are very clear and devoid of any ambiguity whatsoever and that the powers of an inspector under Section 38 (2) of the Act cannot be exercised without a valid order of Court authorizing the said inspector to exercise such powers and contended that Section 25 of the Copyright Act was made by the legislature to further guarantees and protects the rights of Nigerians provided for and guaranteed under Section 37 of the 1999 Constitution and that same provisions make it mandatory for any inspector under Section 38 (2) of the Copyright Act to first apply by ex – eparte motion to a Court of competent jurisdiction and obtain an order permitting him to carry out his functions under Section 38(2) (a) and (b) of the Copyright Act before he can carry out those functions and urged the Court to hold that the failure by the Respondents to so do amounted to a clear breach of the rights of the Appellants and to allow the appeal and set aside the Judgment of the Court below. Counsel referred to Sections 34, 35 and 37 of the 1999 Constitution; Section 25 of the Copyright Act and relied on FRN V. Ifegwu (2003) 15 NWLR (Pt. 842) 113; Alhaji Umar Abdullahi V. Gambo Sabuwa & Ors (2015) LPELR – 25954.
RESOLUTION OF ISSUE FIVE
My Lords, the crux of issue to my mind is that the Appellant alleges that the Respondents had without first complying with the provisions of Section 25(1) of the Copyright Act proceeded to enter upon the premises of members of the Appellant to arrest and seize their goods in utter breach of Sections 34, 35 and 37 of the Constitution of Nigeria 1999 (as Amended). In response, it was contended for the Respondents, the above provision does not avail the Appellant in the absence of any pending action in Court before the alleged actions were taken against the Appellant and furthermore, that since this is a claim for the enforcement of the fundamental rights of the Appellant, it ought to have been commenced under the Fundamental Rights Enforcement Procedure Rules to be competent.
Now, by Section 25(1) of the Copyright Act, it is provided as follows:
“(1) in any action for infringement of any right under this Act, where an ex parte application is made to the Court supported by affidavit, that there is reasonable cause for suspecting that there is in any house or premises any infringing copy or any plate, film or contrivance used or intended to be used for making infringing copies or capable of being used for purposes of making copies or any article, Book or documents by means of or in relation to which any infringement under this Act has been committed, the Court may issue an order upon such terms as it deem just, authorizing the applicant to enter the house or premises at any reasonable time by day or night accompanied by a police officer not below the rank of an Assistant Superintendent of Police, and- (a) Seize, detain and preserve any such infringing copy or contrivance; and (b) Inspect all or any documents in the custody or under the control of the defendant relating to the action.”
By Sections 34, 35 and 37 of the Constitution of Nigeria 1999 (as Amended), the rights of the Citizens of Nigeria and every person residing in Nigeria to dignity of the human person, to personal liberty and to private and family life are guaranteed. However, I am unable to agree with the submissions by the Respondents that the Appellant ought to have commenced their action under the provisions of the Fundamental Rights Enforcement Rules 2009 and not by means of an Originating Summons.
In my view, this submission is not apposite to the facts and circumstances of this case, in which the relief for the enforcement of some of the provisions of Chapter 4 of the Constitution of Nigeria 1999 (as Amended) is rather ancillary to the principal reliefs under the Copyrights Act. In law therefore, once the principal relief claimed is not for the enforcement of any of the provisions of Chapter 4 of the Constitution of Nigeria 1999 (as Amended), then the proper mode of commencement is not by means of the Fundamental Rights Enforcement Procedure Rules 2009. I therefore discountenance this submission by the Respondents and hold firmly that the Appellant’s Suit was competent in this respect. See House Owners/Residents Association of Shell Housing Estate & Ors V. Udensi (2019) LPELR – 47501 (CA) per Georgewill JCA @ p. 19 – 24. See also Tukur V. Government of Taraba State (1997) 6 NWLR (Pt. 510) 549 @ pp. 576 – 577; Emeka V. Okoroafor & Ors (2017) LPELR – 41738 (SC); Alhaji Umaru Abba Tukur V. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517; Mrs Comfort Alagbe Kolo V. Nigeria Police Force & Ors (2018) LPELR – 43635 (CA).
It is true that Section 25(1) of the Nigerian Copyright Act requires that in any action in which there is need to enter upon the premises of any party in relation to the action, a prior order of Court must be sought and obtained before any such entry can be made. However, having carefully reviewed the affidavit and counter affidavit evidence of the parties and considered the submissions of counsel in their respective briefs in the light of the findings of the Court below, I am of the view that the condition precedent for the invocation or applicability of Section 25(1) of the Nigerian Copyright Act requiring a prior order of Court to enter upon the premises of the Appellant by the Respondents has not been fulfilled as there was no pending action between the parties as at the time of the alleged entry into the premises of the Appellant by the Respondents.
Thus, in the absence of any evidence of any pending action between the parties prior to the entry into the premises of the Appellants, there is no requirement in law that the Respondents, particularly the 3rd Respondent, if he reasonably believes that there is actual or intended breach of the criminal laws of the State, ought to seek and obtain the leave of the Court before swinging into action to investigate and or arrest or enter into the premises of the Appellants for the purposes of carrying his constitutional mandate.
There is also in the Record of Appeal evidence of pending criminal charges emanating from the carrying out of his duty by the 3rd Respondent. Therefore, in the absence of any allegation and proof of malice coupled with the inapplicability of Section 25(1) of the Nigerian Copyright Act, the Appellant failed to prove any unlawful or illegal interference with or breach of any of their rights as protected in Chapter 4 of the Constitution of Nigeria 1999 (as Amended). The Court below was therefore right to have also rejected this head of claim of the Appellant. See Section 10 of Criminal Procedure Act; Section 24 of Police Act; Section 12 of the Administration of the Criminal Justice Act 2015. See also Fawehinmi V. Akilu & Togun (1987) 4 NWLR (Pt.797)1; Fawehinmi V. IGP & Ors (2003) INCC 414; R. V. Commissioner of Police of the Metropolis Ex parte Blackburn (1968) 2 QB 118.
To my mind, the provision of Section 25(1) of the Copyright Act is understandable and expected in every Society where the rule of law operates so that once an action has been instituted before a Court of law and the parties had submitted to the jurisdiction of the Court, then no one of the parties is or should be allowed to take the same matter into his hand without the leave of the Court first sought and obtained whether exparte as in Section 25(1) of the Copyrights Act or on notice as the case may be if so required so that the Court being ‘dominus litem’ remains in control and in charge of every aspects of the case between the parties as already submitted to it by the parties. Consequently, issue five is hereby resolved against the Appellant in favor of the Respondents.

On the whole, having held that the Court below was right in finding for the Respondents against the Appellants on all the issues of facts in dispute between the parties and had arrived at the correct decision dismissing the claims of the Appellant against the Respondents, this Court has no business interfering with or disturbing the correct findings of facts and the right decision of the Court below since this Court is not so much concerned with the correctness or wrongness of the reasons adduced by a trial Court for its decisions or conclusions but rather more concerned with whether the decision reached or conclusion arrived at was correct or wrong. See Alhaji Ndayako & Ors. V. Alhaji Dantoro & Ors. (2004) 13 NWLR (Pt. 889) 187 @ p. 198, where Edozie, JSC., had pronounced with finality on this vexed issue, thus:
“An appellate Court is only concerned with whether the judgment appealed against is right or wrong not whether the reasons given are right or wrong. Where the judgment is right but the reasons given are wrong, the appellate Court does not interfere. It is only where the misdirection has caused the Court to come to a wrong conclusion that the appellate Court will interfere….”
See also Abaye V. Ofili (1986) 1 NWLR (Pt. 15) 134; Ukejianya V. Uchendu 18 WACA 46.
In the light of all the above, and having resolved all the five issues for determination against the Appellant, in favor of the Respondents, I hold that this Appeal lacks merit and is liable to be dismisses. I hereby so dismiss it in its entirety.

In the result, the judgment of the Federal High Court, Benin Judicial Division, Coram; A. M. Liman J., in Suit No: FHC/B/137/2014: Registered Trustees of Association of Hotel Proprietors of Edo State V. Copyright Society of Nigeria Ltd/GTE & Ors., delivered on 21/10/2016, in which the claims of the Appellants as Claimant against the Respondents as Defendants were dismissed for lacking in merit, is hereby affirmed.
There shall be no Order as to cost.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I read before now the judgment of my learned brother, Biobele Abraham Georgewill J.C.A; just delivered. I agree that the appeal lacks merit and for the reasons advanced by my learned brother, I also dismiss it.
The parties are ordered to bear their respective costs.

TINUADE AKOMOLAFE-WILSON J.C.A.: I have read before now in draft, the lead Judgment of my learned brother, BIOBELE ABRAHAM GEORGE WILL., JCA just delivered and I agree entirely with his reasoning and the conclusion. He has resolved thoroughly the issues raised in this appeal and I have nothing useful to add.

Accordingly, I also dismiss the appeal for lacking in merit. I abide by the consequential order in the lead judgment.

Appearances:

I. D. Okezie, Esq., with him, Miss O. C. Okechukwu and Miss J. O. Abu For Appellant(s)

Enahoro Aghomon, Esq. for the 1st and 2nd Respondents

The 3rd Respondent though duly served with hearing notice on 2/9/2020, was not represented by counsel at the hearing of this appeal. For Respondent(s)

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REGD TRUSTEES OF ASSOCIATION OF HOTEL PROPRIETORS OF EDO STATE v. COPYRIGHT SOCIETY OF NIG. LTD/GTE & ORS (2020)

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