VICTORY OGHENEKEVWE EMUEJERAROWHO v. ECOBANK LIMITED
(2018)LCN/12473(CA)
In The Court of Appeal of Nigeria
On Thursday, the 12th day of July, 2018
CA/L/1089/2016
RATIO
CONTRACT: WHERE A CONTRACT IS ILLEGAL IN LAW
“A contract is illegal in law, if:
(a) the consideration or promise involves doing something illegal or contrary to public policy, or
(b) the intention of the parties is to promote something illegal or contrary to public policy.
(c) The terms and conditions are expressly prohibited by or contrary to the provisions of a law or statute.
Such a contract is an illegal contract because is contrary to the law and public policy and is void and cannot be the foundation of any legal right.
See Onyiuke III v. Okeke (1976) 1 ALL FWLR (Pt.1) 181 (1976) 3 SC 1 @ 7, Amisu v. Nziribe (1989) 4 NWLR (Pt.118) 755, Sodipo v. Lemminkainen (No.2) (1985) 2 NWLR (2008) 547, (1985) 1 SC, 197 @ 210, Pan Bisbilder Nigeria Limited v. FBN Limited (2000) 1 SC, 71, (2000) 1 NWLR (Pt.642) 684, Alao v. ACB (1998) 3 NWLR (542) 339.” PER MOHAMMED LAWAL GARBA, J.C.A
Before Their Lordships
MOHAMMED LAWAL GARBAJustice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMOJustice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKURJustice of The Court of Appeal of Nigeria
Between
VICTORY OGHENEKEVWE EMUEJERAROWHO – Appellant(s)
AND
ECOBANK LIMITED – Respondent(s)
MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment by the Federal High Court, sitting in Lagos (Lower Court), in the Appellant’s Suit No: FHC/L/CS/959/2011 against the Respondent for damages for alleged infringement of his rights in using his photograph and modeling works to advertise its Automated Teller Machines (ATM) Services without authorization and consent. Dissatisfied that the suit was dismissed, the Appellant brought the appeal on six (6) grounds contained in the Notice of Appeal dated and filed on 24th August, 2016 from which the same number of issues are said to arise for decision by the Court in the Appellant’s brief filed on the 20th July, 2017. The issues are:-
1. Whether the learned trial Judge was right when he held that there was nothing illegal or contrary to public policy in Exhibit B5, D2 and for holding so without resolving some vital issues placed before it by the Appellants, that the said exhibits are valid and subsisting.
2. Whether Tonywyse is the first owner of the copyright or related rights in the photograph of the Appellant.
3. Whether the appellant assigned or/and ceded his work or photography to Tonywyse for the purpose of the Defendant’s ATM media campaign in 2008 for which the Plaintiff was duly paid by virtue of Exhibit B5.
4. Whether the learned trial Judge was right when he held that the issue of privity of contract does not arise in the instant case.
5. Whether there is evidence before the Honourable Court to show that the agreement between the Appellant and the Tonywyse was terminated by the breach of the agreement by Tonywyse.
6. Whether the learned trial Judge was right when he held that the Plaintiff/Appellant did not terminate the contract of agreement between him and Tonywyse by notice as notice of termination was never issued and served on the defendant under clauses 6 and 7 of the Exhibit D2.”
Three (3) issues are identified in the Respondent brief filed on the 7th August, 2017 for determination as follows: –
3.1 Whether the learned trial Judge was right in holding that there was nothing illegal or contrary to public in Exhibit B5, D2 and D1, and resolved the issue in favour of the Defendant (now Respondent at the Court of Appeal) against the Plaintiff (now the Appellant at the Court of Appeal).
3.2 Whether the learned trial Judge was right in holding that the issue of privity of contract does not arise in the instant cage.
3.3 Whether the learned trial Judge was right in holding that the Plaintiff (now Appellant at the Court of Appeal) did not terminate the agreement between the Appellant and Tonywyse by notice as the notice of termination was never issued and served on the Defendant (now Respondent at the Court of Appeal) under Clause 6 and 7 of Exhibit D2.”
The Appellant filed the Appellant’s Reply brief on the 21st August, 2017 in reaction to the Respondent brief.
After a reading of the judgment by the High Court and a calm view of the issues formulated in the Appellant’s brief, the crucial issue which calls for decision by the Court is whether the Lower Court is right that the Appellant did not prove the existence of his right to the copyright, photograph or artwork allegedly infringed upon by the Respondent to enable him succeed in the claim.
I intend to determine the appeal on the basis of this sole issue on the authority of inter alia, Sha v. Kwan (2000) 8 NWLR (670) 685 @ 700 where the Supreme Court stated that: –
“The Court of Appeal is at liberty and possess the jurisdiction to modify or reject all or any of the issues formulated by the parties and frame its own issues or, as pointed out above, reframe the issues by the parties it in its views, such issues will not lead to proper determination of the appeal.”
The above position was affirmed in the later case of Chabasaya v. Anwasi (2010) 10 NWLR (1201) 163 @ 181 by the apex Court when it held that: –
“The law permits an appellate Court to ignore some, or all issues raised in the briefs of argument and formulate its own issues, the way it deems them to be material once they are distilled from the grounds of appeal.”
See also the recent decision by the apex Court in Governor, Ekiti State v Olubunmo (2017) 3 NWLR (1551) 1 @ 23.
The relevant submissions by Counsel on the issues formulated in their briefs would be reviewed and considered, in the determination of the sole issue.
Appellant’s Submissions
The first point of complaint is that the Lower Court erred in holding that Exhibits B5, D2 and D1 are not illegal, invalid, etc., without deciding whether clauses 10 and 16 of Exhibits D2 contracted to oust the jurisdiction of the Court and in violation of the provisions of Section 36 of the Constitution, as canvassed in the Final Address by Appellant’s Counsel. American Cyanamid v. Vitality Pharmaceutical Limited (1991) 12 NWLR (171) 15 @ 39 and Section 173 of the Evidence Act, 2011 on the law that failure to deny averments in pleadings amount to an admission and require no further proof, were referred to along with a portion of the Appellant’s evidence under cross-examination at page 14 and 15 of the Supplementary Record of Appeal transmitted on 8th June, 2017, deemed on 9th May, 2018 which is said to be extraneous to, but relied on by the Lower Court to find that the Exhibits are not illegal and contrary to public policy on the authority of Total Nigeria Plc. v. Ajayi (2004) 3 NWLR (866) 270, among other cases. It is maintained that the Exhibits are illegal and contrary to public policy and cannot be used as a basis for any legal right and the case of Ajaokuta Steel Company Limited v. Corps. Ins. Ltd (2004) 16 NWLR (899) 369 @ 402 was cited for the position.
It is further argued that the Lower Court did not resolve the issue raised in the Appellant’s Final Addresses that because the said Exhibits were signed by Tonywyse, which is not a human being, they were incompetent and void, relying on Okafor v. Nweke (2007) 10 NWLR (1043) 521 @ 530, in addition to other authorities. The Court is invited to resolve the issues not resolved by the Lower Court under Section 15 of the Court of Appeal, Act 2004 and the authority of Union Beverages Limited v. Pepsi Cola Int Limited (1994) 1 NWLR (330) 1 @ 12. Counsel urges the Court to resolve issue in Appellant’s favour.
The other submissions are to the effect that the Lower Court relied on contradictory evidence of the Respondent to hold that Tonywyse was the first owner of the copyright to the Appellant’s Photograph having paid him for it. According to Counsel, Tonywyse was the managing agent of the Appellant and not his employer as shown in clause 17(iv) of Exhibit D1 and Clause 1 of Exhibit D2. 7th Edition of Black’s Law Dictionary on definition of “managing agency” and Edem v. Canon Balls Limited (2005) 12 NWLR (938) 2 @ 43 on agency were referred to and it is further contended that the Appellant did not assign or/and cede his work or photograph to Tonywyse for the purpose of the Respondent’s AIM Services Campaign since Exhibit D5 was on Tonywyse letter headed paper and addressed to it and so cannot be a licence and assignment at the same time. Kari v. Ganaram (1997) 2 NWLR (488) 380 @ 397 was cited on what permission entails and it is submitted that the decision by the Lower Court is not supported by the evidence before it and so perverse on the authority of Ekeagwu v. Nigeria Army (2010) 6 NWLR (1220) 419 @ 433. It is also the case of Counsel that since the Respondent was not a party to Exhibits D2 and D5, it cannot base its defence on the Exhibits and rely on them against a party thereto, citing UBA v. Jargaba (2007) 11 NWLR (1045) 247 and Anuruba v. FCB Limited (2005) 10 NWLR (947) 321 @ 344-5.
Furthermore, Counsel said the contracts in Exhibits D1, D2 and D5 were terminated by breach on the part of Tonywyse as pleaded by the Appellant in paragraph 6 of the Reply dated 3rd July, 2015, which was not denied by the Respondent and that the Appellant had terminated the contract in Exhibit D2 with Tonywyse at the material time, as pleaded in paragraph 17 of the Amended Statement of Claim.
In further argument, he said that Respondent only denied and joined issue with the Appellant that the contracts were not terminated by letter or notice to it and that since the Respondent is not a party, the Appellant had no duty to notify it of the termination in Exhibit B4.
In conclusion, the Court is urged to allow the appeal, set aside the judgment by the Lower Court and enter judgment in favour of the Appellant as claimed.
Respondent’s Submissions:
It is submitted that Exhibits B5, D1 and D2 are legal, valid and not contrary to public policy or Section 36 of the Constitution as they are agreements freely entered into by the Appellant who after taking benefit from them would not be heard to say that they are illegal, null and void. The cases cited by the Appellant are said not to be applicable to his case, cited out of context and that there was no evidence that Exhibits are contrary to public policy or the pictures were offensive.
UBN Limited v. Ozidi (sic) (Ozigi) supra and South Trust Bank v. Pheranzy Gas Limited (2014) 6 NWLR (1432) 1 @ 9 were referred to and it is argued that it is not every unchallenged evidence that must be acted upon by a Court, but, on the authority of Omoregbe v. Lawani (1981) 3-4 SC, 108 and Consolidated Breweries Plc v. Aisowieren (2002) FWLR (116) 959 @ 990, (2001) 15 NWLR (736) 424, such evidence must be admissible and credible to meet the standard of proof on the preponderance of evidence. Counsel said that the Appellant knew that the Exhibits were signed for Tonywyse by its Managing Director and does not make them void or incompetent as argued by the Appellant.
Citing B.M. Limited v. Woermann-Line (2009) 13 NWLR (1157) 149 @ 158 on the doctrine of privity of contract, counsel said that the Appellant did not sue Tonywyse with who he had a contract with and to who he assigned his right to the photograph used by the Respondent for consideration as shown in Exhibit 85. As such the Lower Court is said to be right that the issue of privity of contract between the Appellant and Tonywyse and the Respondent did not arise and that the cases of UBA v. Jargaba (supra) and Anuruba v. FCB Limited (supra) do not apply to the facts of the Appellant’s case. Afolabi v. Mudashiru (2010) 3 NWLR (1181) 328 @ 330 and Illiyasu v. Ahmadu (2011) 12 NWLR (1264) 236 @ 240 were cited on the application of the principle that he who comes to equity must also do equity and it is contended that the Appellant did not approach the Lower Court with clean hands. Exhibit B4 was said to be an afterthought which was procured after seeing the Amended Statement of Defence by the Respondent, but by which the Appellant acknowledged receiving money from Tonywyse in relation to the modeling agreement between them.
Counsel also said the Appellant did not terminate the agreement in Exhibit D2 as no notice was served on the Respondent or acknowledged by Tonywyse, Ogunleye v. Aina (2011) 3 NWLR (Pt.1235) 47 @ 48 and Olufosoye v. Olorunfemi (1998) 1 NWLR (1995) 37, among other cases, were cited on duty of a trial Court to evaluate evidence placed before it by the parties taking advantage of seeing witnesses and observing their demeanour.
The Court is urged to dismiss the appeal and affirm the decision by the Lower Court.
Most of the arguments contained in the Appellants Reply brief are repetitions and further arguments of the issues canvassed in the Appellant’s brief and not on answers to new or fresh points arising or raised in the Respondent’s brief.
Counsel for the Appellant says that the arguments in the Respondents brief show that the Appellant’s case was misunderstood by the Respondent’s Counsel and maintains that the Lower Court did not resolve some issues raised by the Appellant.
There is no dispute about the use of the Appellant’s photograph or art work by the Respondent for its ATM Service advertisement in 2008 and the only point of disagreement is whether the Appellant’s consent and authority were required by the Respondent before the use for the advertisement.
The case of the Appellant in paragraphs 7, 8 and 9 of the Amended Statement of Claim dated 14th June, 2012 which were repeated in the same paragraphs of the Appellant’s Amended Statement on Oath dated 15th June, 2012, was that the use of his photograph/artwork by the Respondent was without his knowledge, consent or authority and that he had no contract with the Respondent or any other person at the material time for the said use and did not give the photograph or modeling work to the Respondent or any other person for use in the advertisement.
The case of the Respondent on its part, is that it did not require the Appellant’s prior consent or authority for the use of the photograph or modeling work in the said advertisement, on the ground that the ownership of the said art work or copyright has been assigned, licensed or otherwise howsoever, transmitted to it, as contained in paragraphs 3 and 4 of the Amended Statement of Defence dated 21st June, 2012 which were repeated at paragraphs 5 and 6 of the Amended Statement on Oath of Mr. L. Igun, dated the same 21st June, 2012. The Respondent relied on the following documents for its position:-
(a) Registration Form completed by the Appellant with Tonywyse, admitted in evidence as Exhibit D1,
(b) Copy of an Agreement between the Appellant and Tonywyse dated 4th March, 2006 by which the Appellant appointed Tonywyse his managing agent admitted as Exhibit D2 and
(c) A copy of a letter between Appellant and Tonywyse dated 3rd March, 2007 by which the Appellant acknowledged receipt of the sum of N200,000.00 for his services in modeling for Media Plus Int. C. Limited to be used for Oceanic Bank IPO, admitted in evidence as Exhibit B5.
In his Reply to the Amended Statement of Defence dated 3rd January, 2012, the Appellant in paragraph 4, averred that he determined or terminated the above documents relied on by the Respondent by the letter dated 12th March, 2007.
In its judgment, the Lower Court after a consideration of the above named Exhibits, concluded that Exhibits B5 and D2, freely and voluntarily signed by the Appellant are not illegal or contrary to public policy, but valid and binding on the parties thereto.
For a proper and complete appreciation of the terms and conditions of Exhibit B5, which is at the centre of the dispute in the Appellant’s case, it should speak for itself and here it is: –
1. That the model appoints the Agency as his/her managing agent to procure for and on his/her behalf modeling, acting and promotional jobs that involves personal appearances, photography, filming, etc.
2. That the agency undertakes to present the model/artiste for such jobs as contained in clause 1 above and any other jobs incidental to the modeling/acting profession when same is expressly required for by its clients which include Film/TV Productions, Photographers, Advertising Agencies, and Advertisers.
3. That the Agency hold exclusive right to determine the suitability or otherwise, of conditions and terms of contracts involving the model/artiste featuring in all motion pictures, still pictures, sound recordings, fashion parades and live appearances.
4. That the Agency bound only to present the model/artiste for such jobs which it deems appropriate for him/her while it is binding on the mode/artists to make regular call/visits at least twice (2ce) a week to the Agency to receive message, call up advise and briefing, etc.
5. That the Agency reserves the rights to negotiate any form of contractual agreement with any organization on behalf of the model/artists, and the model/artists is bound by the agreement of such contract as far as the Agency prudently believes that it is in the interests of the model and the Agency.
6. That this contract shall be for period of two (2) years from the date the written above during which the model shall not register with any other modeling agency. Advertising agency, Film/TV Producer, Photographer or Advertiser and after which period it shall be deemed to continue for another Twelve (12) months unless either party to the agreement indicates otherwise.
7. That this contract cannot be terminated in the first nine (9) months of the contract and a period of three months earlier must be given by either party that wishes to terminate this contract agreement.
8. That the payment of all jobs done by the model which may be by cheque or cash shall be paid in full directly to the agency after which it shall deduct its commission of 30% (Thirty percent) or the agreed rate in force and pay the balance to the model.
9. That payment of all jobs by the model/artists as may be requested by the agency shall be made to the model/artiste on or before three (3) months after the filming/photograph or personal appearance (e.g. Hosting/Ushering) may have been completed or on or before two (2) months after payment must have been made to the agency by the Film/TV Producer, Photographer, Advertising Agency or Advertiser as may be obtained.
10. That this agency has the model/artiste’s express authority should the need arise to sign on his/her behalf the release form any such form that releases the Agancy and its Client and their respective assignees and representative from any claim or right her/she may have against them in respect of the Copyright and the reproduction and use of the Film/TV or Photocopy material taken of him/her with his/her consent.
11. That the model/artiste shall not solicit or undertake any other Job assignment(s) without the consent of the Agency, and that it is incumbent upon the model/artiste to disclose the existence of this contract and the agency to any part(ies) that seek her/her services.
12. That the model/artiste agrees not to consent to and take part in any photograph, filming, or commercial appearance without the Agency’s knowledge and authorization.
13. That the violation of any of the stipulation in clause 11 and 12 would result in breach of contract penalty of no more than (50%) (Fifty percent) of the underlying contract(s) amount.
14.That the Agency reserves the right to impose a fine of N10,000.00 (Ten Thousand Nain) or more should the model without cogent reason and prior notice fail to turn up or turns up late for the performance of any of the jobs assigned him/her, thereby resulting in the model lapsing the job and consequently causing the Agency to breach on the contract between it and its client.
15. That the agency shall have the right to deduct the amount of such fine imposed upon a breach of any clause in this agreement payable by the model/artiste from his/her outstanding payment with the agency or from due payments from third parties.
16. That the model/artists agree to indemnify the company against case emerging from any litigation which the model/artiste institute against the Agency or its client(s) or any third party too has contracted the services of the model/artiste through the agency, or to any claim for damages incurred due to unavoidable circumstances while on location or while performing in a job on behalf of the Agency.
17. That the model/artiste relinquishes the right to perform services for similar products or compelling clients. Any breach of this clause may result to possible litigation and will surely result in the termination of this agreement and possibly a fine commensurate to the expected amount payable for the offending job.
18.That the model/artiste shall not disclose any address/telephone number/e-mail but that of the agency as his/her contract address except outside official engagement and only for personal reasons to client and other third parties doing business or proposing to do business with the agency.
19. That the model/artiste agrees that any photograph film or artiste drawing taken by the agency whether or not the model/artiste paid for them remains the property of the agency even after the expiration or cancellation of this agreement.
20.That the model/artiste agrees not to disclose any Agency’s information about job engagement with anybody outside of the Agency Executives and its representatives. It is also further agree that the model/artiste would not have anything professionally to do with the “freelance” models/artistes.
21.That the model/artiste would directly inform the agency of any relevant changes in her/her circumstances e.g. change of address and marital status.
22. That the model/artiste shall conduct herself/himself in the most decent manner when attending or partaking in any of the sessions assigned by the Agency and furthermore the model/artieste shall not make any unauthorized doctrine detrimental appearance or comment on behalf of the Agency.
23. That the model/artiste agrees to pay the sum of Five Thousand Naira (N5,000.00) and N3,000.00) for adults and kids respectively for Registration Form and ID Card to the Agency.
24.That except as herein otherwise provided, this agreement shall be binding upon the parties and their legal representatives, heirs, administration executors, successors and assigns.
25.That this agreement shall be subject to and construed in accordance with Nigerian Laws.
As witness the hands of the Parties hereto the day and year first written.”
There is no dispute that the Appellant freely and voluntarily, with his eyes wide open, signed the above terms and conditions and agreed to be bound thereby in his business relationship with Tonywyse, as his professional managing agent.
These terms and conditions are strictly personal agreements which the parties thereto entered into for their mutual business benefits while they lasted and each of the parties had the legal capacity to contract as they please within the confines of the law, which respects the sanctity of their agreements. Once parties freely entered into agreements, in writing, orally or even by necessary implications, and clearly set out and expressly stipulate the terms and conditions thereof, the law hold them bound by the words and intention embodied in such agreements. African Re-insurance Corp. v. Fantaye (1986) 1 NWLR (2014) 113, DHL Int. Limited v. Chidi (1991) 2 NWLR (329) 720, Union Bank Nigeria Limited v. Ozigi (supra), Obmiami Brick & Stone Nigeria Limited v. ACB Limited (1992) 3 NWLR (229) 260.The Appellant has argued that the Exhibits B5 is illegal and contrary to public policy on the ground that paragraph 4 thereof intends to oust the jurisdiction of the Court over the contract. Paragraph 4 of Exhibits B5 is as follows: –
“I further agree that I shall not prosecute any proceedings, claim or demands against you or your successors or assigns in respect of any use of the materials as define (sic) above.”
I should just say that the words and language used in the paragraph are so plain and unambiguous so as to be easy to understand and comprehend.
The clear purport of the paragraphs is the agreement by the Appellant not to pursue claims or demands against Tonywyse in respect of any use of the materials to which the agreement relates.
The paragraph simply limits and the Appellant agreed to forego any claim or demand he might otherwise make against his managing agent in respect of the use of the materials in question. It has absolutely, nothing to do with ousting the jurisdiction of a Court as grossly misconceived by the Appellant’s Counsel, to make Exhibits B5 an illegal contract or one against public policy. A contract is illegal in law, if:
(a) the consideration or promise involves doing something illegal or contrary to public policy, or
(b) the intention of the parties is to promote something illegal or contrary to public policy.
(c) The terms and conditions are expressly prohibited by or contrary to the provisions of a law or statute.
Such a contract is an illegal contract because is contrary to the law and public policy and is void and cannot be the foundation of any legal right.
See Onyiuke III v. Okeke (1976) 1 ALL FWLR (Pt.1) 181 (1976) 3 SC 1 @ 7, Amisu v. Nziribe (1989) 4 NWLR (Pt.118) 755, Sodipo v. Lemminkainen (No.2) (1985) 2 NWLR (2008) 547, (1985) 1 SC, 197 @ 210, Pan Bisbilder Nigeria Limited v. FBN Limited (2000) 1 SC, 71, (2000) 1 NWLR (Pt.642) 684, Alao v. ACB (1998) 3 NWLR (542) 339.
The Lower Court is right that there is nothing illegal about Exhibits B5.
Next, Counsel for the Appellant says clauses 10 and 16 of Exhibit D2 make the Exhibit an illegal contract and contrary to public policy. The clauses are, as seen above, agreements by the Appellant not to make or pursue claims against Tonywyse and to indemnify it in respect of any litigation in connection with the contract between them. The Clauses have nothing to do with ousting the jurisdiction of the Court, but rather, recognize that there might be litigation in which a court may make orders in respect of which the Appellant agreed to indemnify Tonywyse.
In that context, Exhibit D2 is not illegal or contrary to public policy and the Lower Court is right to have to found.
In any case, having taken benefit from the Exhibits, as a party, the Appellant cannot be heard in law to say or allege that they are illegal contracts or contrary to public policy and so void – see Batalha v. West Const, Company Limited (2001) 18 NWLR (744) 95, Pan Bisbilder Nigeria Limited v. FBN Limited (supra), Fasel Services Limited v. NP (2003) 8 NWLR (Pt.821) 73, W.C.C. Limited v. Batalha (2006) 9 NWLR (986) 595.
In addition, the mere fact that the terms and conditions in the contracts may be onerous to the Appellant does not make them contrary to public policy since they relate to his personal and professional right which he has the absolute discretion, and which he infact; freely and voluntarily, opted to cede, waive, relinquish or abandon, by signing the contracts. The Appellant was at liberty to agree to any terms and conditions of a contract, which does not amount to an illegal contract as defined above. Lignes Aeriennes Congolaises v. Air Atlantic Nigeria Limited (2006) 2 NWLR (963) 49.
Since I have stated that there is no dispute that the Appellant was a party who freely and voluntarily signed Exhibits D1, D2 and D5 as contract between him and Tonywyse, expressly and unequivocally setting out the terms and conditions agreed to between them, he is bound by them and cannot be heard and allowed to resile, or dispute them.
Learned Counsel for the Appellant has said that the Appellant had terminated the contracts in the Exhibits by the letter dated 12th March, 2007 admitted in evidence as Exhibit B4, but which Tonywyse refused to acknowledge receipt of. However, there is no credible evidence to show that there was in fact, service or even an attempt to serve the said letter on Tonywyse apart from the ipse dixit of the Appellant that he terminated the contracts.
Learned Counsel has also argued that Exhibit B5 by which he acknowledged receiving the sum of N200,000.00 from Tonywyse, was for the use of his photograph for Oceanic Bank IPO in 2007 and not the Respondent’s advertisement in 2008. However, in paragraph 3 of the Exhibit, the Appellant says: –
“I realize and agree that you and your successors and assigns are the rightful owners of the copyright subsisting in the photograph, (herein after called the Material)”
It is beyond reasonable and viable argument that by the above paragraph, the Appellant knew and expressly, without any equivocation, agreed that Tonywyse were/are the rightful owners of the copyright in the photograph to be used in the Oceanic Bank IPO in 2007 and in paragraph 4 thereof which says and further agreed that: –
“I further agree that you or any person authorized by you or by your successors or assigns are at liberty to use the material in any form and medium. The material and the reproductions thereof may be used by you or by any persons authorized by you or by our successors or assigns to represent an imaginary person and I agree that no implication with regard”.
Personally shall be deemed to be made by reason of such and that no statement or wording shall be deemed to be attributed to me personally.
“The combined effect of the two (2) paragraphs above is that the Appellant knew and freely, voluntarily and expressly agreed that Tonywyse was the rightful owner of the copyright to the photograph to be used for the Oceanic Bank IPO in 2007 and was at liberty to use it or assign it to other persons to be used in ‘any form or medium'”.
Clearly the Appellant’s intention and deed, in the paragraphs was to divest himself of the ownership of the copyright to the photograph to be and that was used for the Bank IPO in question and vest in Tonywryse, the absolute and unfettered ownership of the copyright and the discretion to use it in any form or medium it chose at the time or/and thereafter.
The Lower Court is therefore right to have found and held in its judgment that:-
“The Plaintiff by Exhibits D2 and B5 assigned any liability, benefit etc in the work to media plus and Tonywyse and could not thereafter retain any rights in those pictures and can no longer give consent or licence to anybody before it could be used. By his relationship with the Tonywyae, the Plaintiff divested himself of any right in any work arising from that relationship. The Plaintiff could not give what it did not have, having signed exhibit 85 which was a written licence issued by the Plaintiff to Tonywyse employed by media plus ltd for the Defendant The Defendant need not obtain permission or consent of the Plaintiff for the use of the Plaintiffs photograph or image for the advertisement of its ATMs.
Tonywyse in my view is the first owner of the copyright or related right in the photograph under reference. The Plaintiff having assigned his right to Tonywyse and the Defendant employed the Plaintiffs agent/employer Tonywyse through its own agent media plus limited for the purpose of its ATM media campaign for which Tonywyse was duly pad, the Plaintiff has no claim against the Defendant.”
In the above premises, there is no merit in the arguments of Counsel in support of the appeal which is therefore bound to fail.
In the final result, the appeal is dismissed for want of merit and the judgment by the Lower Court delivered on the 2nd June, 2016 is hereby affirmed.
There shall be costs, assessed at N100,000.00 in favour of the Respondent to be paid by the Appellant for the prosecution of the appeal.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I had the advantage of reading before now, the lead judgment of my learned brother, MOHAMMED LAWAL GARBA, JCA, just delivered. I entirely agree with his reasoning and conclusion that the appeal lacks merit.
The appeal is accordingly dismissed and the judgment of the Lower Court is hereby affirmed. I abide by the order as to costs in favour of the Respondent.
JAMILU YAMMAMA TUKUR, J.C.A.: My lord MOHAMMED LAWAL GARBA JCA afforded me the opportunity of reading the draft of the judgment just delivered.
I agree with the reasoning and conclusion in the judgment and I adopt it as mine with nothing to add.
Appearances:
Emmanuel OgbobineFor Appellant(s)
I. Onwusika with him, E. Porbein For Respondent(s)
