AFRICAN SONGS LTD & ANOR v. KING SUNNYADE

CITATION: (2018) LPELR-46184(CA)

In the Court of AppealIn the Lagos Judicial Division

Holden at Lagos

ON FRIDAY, 9TH NOVEMBER, 2018Suit No: CA/L/329/2016

Before Their Lordships:

TOM SHAIBU YAKUBU Justice, Court of AppealBIOBELE ABRAHAM GEORGEWILL Justice, Court of AppealABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice, Court of Appeal

Between1. AFRICAN SONGS LIMITED2 TAKE YOUR CHOICE RECORD STORES LIMITED - Appellant(s)

AndKING SUNDAY ADENIYI ADEGEYE(a.k.a King Sunny Ade, Suing on behalf of himselfand members of Green Spot Band)

- Respondent(s)

RATIO DECIDENDI

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1. ACTION - REPRESENTATIVE CAPACITY: Position of the law as regards a plaintiff who sues in a representativecapacity"The second peripheral issue is whether the Respondent made out the representative capacity in which hecommenced the action against the Appellant or merely prosecuted the action for himself contrary to thepleadings. I have taken time to consider the submissions of counsel and studied the averments of theRespondent in the 3rd amended statement of claim and the evidence led thereon and it appears to me that thisground of contention is both illogical and irrelevant bearing no correlation to the lucid pleadings of theRespondent as to the capacity in which the action was commenced and the unchallenged evidence led thereonand in the absence of any complain by any or all of those represented by the Respondent. In law once a suitdiscloses either by the pleading or in the evidence the representative capacity in which it was prosecuted thennot even the failure to obtain leave to do so if required would defeat such a representative action. Thus, theAppellants, who on this issue are mere busy bodies, are in law bereft of any right to contest or challenge therepresentative capacity of the Respondent, they not being part of the persons represented by the Respondent:This question is therefore resolved against the Appellants and I hold that the Respondent validly commenced andprosecuted this action against the Appellants for himself and as representative of members of Green SpotBand."Per GEORGEWILL, J.C.A. (Pp. 71-72, Paras. A-B) - read in context

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2. ACTION - DECLARATORY RELIEF(S): Principles governing the grant of declaratory reliefs"Now, two out of the three reliefs claimed by the 1st Appellant against the Respondent are declaratory in natureand in law the grant of a declaratory relief is discretionary and thus can only be granted when the Court is of theview that the party seeking it, when all the facts are taken into consideration, is fully entitled to the exercise theCourt's discretion in his favor. See Onuoha v. Okafor (1983) 10 (Reprint) 75. See also Obi V. INEC 6 Ors (2007) 7SC 268; Zenith Bank V. Ekereuwem (2012) 4 NWLR (P1. 1290) 207; Clay Industries (Nig.) Lid. v. Aina (1997) 8NWLR (Pt. 516) 208; Adeleke V. Aserifa (1986) 3 NWLR (Pt. 30) 575.I had while considering issue one reviewed the entirety of the pleadings and evidence including the cross-examination evidence of the witnesses, PW1, DW1 and Dw2, as led by the parties as in the printed record. Hereis the 1st Appellant, a counter claimant, whose witness, DW1, was taken to the cleaners in his cross-examinationand ended up admitting most of the crucial facts as pleaded by the Respondent and on which I have held thatthe claim and evidence of the Respondent was left unchallenged and had affirmed the finding of the Court belowin favor of the Respondent against the Appellant under issue one.In the judgment appealed against, the Court below considerably considered the counter claim in the light of itsfindings on all the issues as joined by the parties and came to the conclusion inter alia thus:"COUNTER-CLAIM...There is no doubt that the 1st Defendant's counter-claim is founded generally on Clause (6) ofthe Agreement dated 6/10/1970 in Exhibit Q and the claim of N500m based on the order of injunction led by theFederal High Court in Exhibit T. As this Court has already made full pronouncement on the Clause 6 in the mainsuit...It is sufficient to say that it is certainly absurd to construe that clause as having absolutely assigned thePlaintiff's copyright to the 1st Defendant whereas other provisions in the agreement made it clear that it had atenor of five years... it appears that the 1st Defendant and its cohorts stuck to the skewed interpretation ofClause 6 more out of mischief... Generally, I hold the respectful view that this counter-claim is misconceived andborne out of deliberate mischief. It actually portrays the 1st Defendant as not being penitent for its wrongful acts.I further hold that the 1st Defendant's claim for N500 Million damages is unfounded since by the injunctive orderof the Federal Court (Exhibit T) made in favor of the Plaintiff, was pursuant to exercise of right by the Plaintiff toprotect his copyright. The copyright in the musical works of the Plaintiff automatically reverted to bill after5/10/1975 as clearly stated in Exhibit 'R'. The 1st Defendant only chose to usurp the copyright and hence notentitled to any legal remedy. I therefore hold that the counter-claim is devoid of and is hereby dismissed..." Seepages 1021 -1062 in Vol. 111 of the records of appeal.Now, in law it is trite that a counter - claim is a separate and independent claim by itself and thus the CounterClaimant therein can only succeed, particularly so where the claims in the counter - claim are principallydeclaratory in nature as in the instant appeal, on the strength of his own case and not on the weakness thedefense. The 1st Appellant's case as put forward in support of the counter claim was not only by itself lacking instrength but was also irredeemably destroyed by the devastating cross - examination evidence of the DW1. SeeMomodu Olubodun & Ors V. Oba Adeyemi & Anor (2008) 6 -7 SC (Pt. 111)1.In the circumstances therefore, of the pleadings, evidence and proved facts in this appeal, it does appear to methat the counter claim of the 1st Appellant was filed merely as a tool of harassment and oppression of theRespondent. In law, if the claim of a claimant constitutes an abuse of Court process, it does not and cannot giverise to or become a cause of action for a counter claim by a Defendant but rather such a Defendant has open tohim several ways of challenging a such a claim which in his opinion constitutes an abuse of the process of theCourt. He either may raise it as a preliminary objection to get the claim terminated in limine or proceed to defendthe claim to get it defeated in the end and be ask for and possibly obtain substantial cost against such aClaimant.However, regrettably the 1st Appellant took neither of these proper steps but rather filed a counter claim againstthe Respondent claiming inter alia: 'A declaration that the action instituted by the Plaintiff in this case andespecially seeking and obtaining an order of injunction retraining the 1st Defendant from exercising the rightsincidental to the ownership of the copyright in all the musical works produced by the Plaintiff pursuant to theagreement of 6/10/1970 is an abuse of judicial process undertaken to the prejudice and financial loss of the 1stDefendant and the sum of N500,000,000.00 being damages suffered by the 1st Defendant between 1997 and2013 and until final judgment arising from the Plaintiffs resort to and obtaining an order of injunction which theyknew or ought to know constitutes an abuse of process.My Lords, the counter claim of the Appellant, save relief three therein which claim was not in least supported byany credible evidence from the Appellants, is in my view both preposterous and strange in our system ofadministration of civil justice and litigation in Nigeria and since in law declaratory reliefs are discretionary andthus can only be granted when the Court is of the view that the party seeking it, when all the facts are taken intoconsideration, fully entitled to the exercise the Court's discretion in his favor, can it be said that the 1st Appellantis one fully entitled to the exercise of the discretion of the Court below in its favor in respect of the declarationssought against the Respondent? I think not! The Court had held, and quite rightly too in my finding, that the 1stAppellant was not so entitled and thus rightly dismissed it for lacking in merit."Per GEORGEWILL, J.C.A. (Pp.94-99, Paras. A-B) - read in context

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3. ACTION - COUNTER-CLAIM: General principles of law with respect to counter-claim"Let me just chip in a word, with respect to the 1st appellant's counter-claim. The law is well settled to the effectthat a counter- claim is an independent and separate action of its own although it is usually an offshoot of themain claim. It is in fact, a cross action whereby the defendant becomes the plaintiff and the plaintiff in the mainaction, takes on the status of a defendant. Therefore, the success or failure of the main action does notnecessarily, translate to the success or failure of the counter- claim.Hence the counter-claimant if he so desires, files his pleadings on it and must lead hard evidence in proving theaverments in it, just the same as the plaintiff in the main action does. The corollary is that all the rules ofpleadings and the evidential principle that he who alleges must provide evidence to prove his allegations asaverred in the main action are applicable to a counter-claim. The essence of trying the counter-claim along withthe main action is for convenience and for saving cost of filing and trying another action separately, where thefacts in the two actions are virtually the same, Chief Emmanuel Ogbonna v. Attorney General of Imo State (1992)2 SCNJ 26; General Yakubu Gowon v. Mrs. Ike Okongwu (2003) 6 NWLR (pt. 815) 38; Attorney General, LagosState v. Attorney General Federation (2004) 12 SCNJ 1@ 39; Ogli Oko Memorial Farms Ltd & Anor v. NigerianAgricultural & Cooperative Bank Ltd & Anor. (2008) 12 NWLR ( pt. 1098) 412 @ 428; (2008) 4 SCNJ 436. It seemsto me, that in the circumstances and facts of the instant matter, the 1st appellant's counter-claim, was no morethan a mere retaliatory action against the respondent's action. There was no shred of evidence, in support of thecounter-claim, which woefully failed."Per YAKUBU, J.C.A. (Pp. 100-101, Paras. A-D) - read in context

4. APPEAL - NOTICE(S) OF APPEAL: Effect of a defective/incompetent notice of appeal"Now, a notice of appeal is the spinal cord of an appeal and therefore, without a competent notice of appeal,which is the foundation on which the appeal is built, an appeal its if is incompetent and without a life of its ownand thus liable to be terminated in limine by way of it being struck out by the Court. See Adami V. Okoli (1977) 7SC 57. See also Olanrewaju V. BON Ltd (1994) 8 NWLR (Pt) 364) 622; Peter Odofin & Anor V. Chief Agu & Anor(1992) 3 NWLR (Pt. 229) 230; Odunze V. Nwosu (2007) 13 NWLR Pt. 1050) 1; Adewunmi V. Oketade (2010) 3SCNJ. 368; MTN V. Mundra Ventures (Nig) Ltd. (2016) LPELR - 40343(CA).The Notice of Appeal, in so far as appeals are concerned, is the originating process and thus must be valid andcompetent to confer life on an appeal. Consequently, once a notice of appeal is found or turns out to beincompetent, as in the instant appeal, it is indeed the end of the matter. In law such an appeal commenced by aninvalid notice of appeal is itself incompetent. It is incurably bad and thus not good for anything worthwhile theprecious time of this Court to be considered on the merit. In Okarika V Samuel (2013) 2 SCNJ 491, the SupremeCourt pronounced with finality on the issue of invalid Notice Appeal inter alia thus:"It is thus the law that an initiating process whether writ of summons, originating summons or a notice of appealmust be valid to confer jurisdiction on a Court to adjudicate between parties on a subject matter in disputebetween them. Thus a notice of appeal not signed by an appellant or his counsel is invalid as there is no stamp ofauthority or authentication."Again, in Shelim V Gobang (2009) Vol. 173 LRCN 36 @ p. 42, it was emphatically stated thus: "First and foremost,a notice of appeal is the basis, foundation and backbone of every appeal and where it is found to be defective orincompetent, the Court of Appeal has the power to strike it out or to discountenance any purported appeal forwhich there is no notice of appeal."See also Amadi V. Okoli (1977) 7 SC 57; Olarenwaju V. BON Ltd. (1994) 3 NWLR (Pt. 364) 622; Odofin V. Agu(1992) 3 NWLR (Pt. 229) 350; Odunze V. Nwosu (2007) 13 NWLR (Pt. 1050) 1; Adewunmi V. Oketade (2010) 3SCNJ 368; Yusuf V. Toluhi (2008) 6 SCNJ 1; Olori Motors Co. Ltd V. UBN Plc (2006) 4 SCNJ 1; Okotie-Eboh V.Manager (2004) 5 SCNJ 131; Anyah V. Imo Concorde Hotel (2001) 12 SCNJ 145; Nyavo V. Zading (2016) LPELR-40803 (CA); Mela V. Ciniki (2015) LPELR 25629(CA); Umaru V Yahaya (2015) LPELR - 26043(CA). ?This Court hasthe power to strike out a notice of appeal as well as the appeal when it turns out that the notice of appeal is notcompetent. This is so because, once there is no valid notice of appeal there is really no basis in law to proceed toconsider and resolve an incompetent appeal on the merit, since no matter how well reasoned or sound such ajudgment on the merit would be, it having been reached in the absence of competence and lack of jurisdiction, isnothing but a nullity. In Macfoy V UAC Ltd. (1962) AC 152 Per GEORGEWILL, J.C.A. (Pp. 26-29, Paras. C-E) - read incontext

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5. APPEAL - GROUND(S) OF APPEAL: Attitude of Court towards a ground of appeal or the particulars in supportwhich contain an argument or narrative"In law a ground of appeal which is merely argumentative and or narrative without succinctly disclosing thecomplaint against the judgment appealed against is incompetent and thus liable to be struck out. So also is aground of appeal whose particulars are inconsistent with the main complaint in the ground of appeal for whichthey were supplied by the Appellant. See Okpuzu V. Uzor & Ors. (2005) LPELR-7476 (CA);See also FederalHousing Authority V. Kalejaiye (2010) 10 NWLR (Pt. 1226) 147.Thus, all that is required of an appellate Court before which the issue of competence of a ground of appeal iscanvassed is to look carefully at the ground of appeal to see if there is an identifiable complaint therein againstany of the ratio decidendi in the judgment appealed against. In law, once there is an identifiable complaint such aground of appeal would suffice and notwithstanding whether the particulars appears or turns out to beargumentative or repetitive or even narrative, an appellate Court would determine it on its merit in order torender substantial justice to the parties before it. See Awusa V. Nigerian Army (2018) 12 NWLR (Pt 1634) 421 @p. 448, where the Supreme Court per Augie JSC., had opined inter alia thus:"The law is that once the error complained of is identified and properly oriented in the ground of appeal, the factthat particulars to the said ground are argumentative, repetitive or narratives is not enough for the appellateCourt to sidestep from doing justice."I have carefully studied ground 1 together with the particulars and it does appear to me not only to be windingand twisting in both argumentations and narratives but also in my finding failed to disclose any identifiablesuccinct compliant against any of the decisions in the judgment of the Court below appealed against by theAppellants. It is therefore in my finding incompetent."Per GEORGEWILL, J.C.A. (Pp. 32-34, Paras. D-B) - read incontext

6. APPEAL - ISSUE(S) FOR DETERMINATION: Effect of an issue for determination distilled from both competentand incompetent grounds of appeal"Now, while the ground purports to be complaining about the Court below making out a case of copyright for theRespondent as against his claims by his pleading and evidence, issue one deals with the issue of whether thefinding by the Court below that the agreement in Exhibit Q between the parties had elapsed in 1975 and itseffect on the rights of the parties. In whatever and whichever way this issue is looked at it is completely offtangent with ground one and cannot by any stretch of imagination be said to be an issue distilled from ground 1as aptly contended by the Respondent's counsel. ?However, issue one was also said to have been distilled fromgrounds 2, 3, 4 and 6 of the grounds of appeal and it has been contended for the Appellants that issue onehaving been so distilled was competent since there is no issue of incompetent raised against grounds 2, 3, 4 and6 by the Appellants. The law is well settled that an issue for determination distilled from a concoction of mixedvalid and invalid grounds of appeal is incompetent. Thus, once it is found that ground 1 is incompetent, as I havealready earlier so found in this judgment, it follows that issue one also distilled from the incompetent ground oneis incompetent notwithstanding that it has also been distilled from competent grounds 2, 3, 4 and 6 of thegrounds of appeal. That being so, I hold that both ground 1 and issue one as distilled by the Appellant are asrightly contended by the Respondent incompetent and are hereby struck out. See Okpuzu V. Uzor & Ors. (2005)LPELR 7476 (CA). See also Federal Housing Authority V. Kalejaiye (2010) 10 NWLR (Pt. 1226) 147."PerGEORGEWILL, J.C.A. (Pp. 34-35, Paras. B-D) - read in context

7. APPEAL - GROUND(S) OF APPEAL: Whether a ground of appeal must be directed at an obiter dictum or theratio decidendi of the judgment appealed against"On ground 7, the contention against it was that it is not a complaint against any of the decisions in the judgmentappealed against but merely against an obiter dicta and therefore, incompetent. In law, an obiter dicta is astatement uttered or made in passing by a Court in its judgment and does not amount to any ratio decidendi,and therefore, cannot form the subject or basis of a valid ground of appeal. This is so because it is not everystatement made by a Court in the course of its judgment that can be made a ground of appeal. In Gallaher Ltd. &Anor. v. British America Tobacco (Nigeria) Ltd. & Ors. (2014) LPELR - 24333 (CA), this Court had succinctly statedinter alia thus:"An opinion expressed in obiter is not appealable for the simple reason that appeal is fought on the basis of thedecision of the Court. It is not every pronouncement made by a Judge that can be made subject of an appeal." Ihave carefully looked at ground 7 in the light of the statement ascribed to the Court below and it does appear tome that there was no finding either of facts or decision on law made thereon to warrant it being a subject of anappeal. I agree with the apt submission of the Respondent's counsel that the statement of the Court belowreferred to in ground 7 does not amount to any ratio decidendi in the judgment appealed against and therefore,cannot be the basis of a valid ground of appeal. In law an appeal is fought on the basis of the decisions reachedby the Court, with which an Appellant is aggrieved and not with every statements made or words uttered in thecourse of the judgment but not amounting to any decision on any of the issues as joined by the parties:Consequently, ground 7 together with issue three is hereby struck out for being incompetent. See Gallaher Ltd. &Anor. v. British America Tobacco (Nigeria) Ltd. & Ors. (2014) LPELR - 24333 (CA)."Per GEORGEWILL, J.C.A. (Pp.35-37, Paras. E-A) - read in context

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8. APPEAL - GROUND(S) OF APPEAL: Effect of a ground of appeal from which no issue for determination isformulated"On ground 10, it was contended that no issue was distilled from it and it was therefore, incompetent as havingbeen abandoned by the Appellants. On the contrary it was contended that issues four and five were succinctlydistilled from ground 10 and thereby rendered it competent. I have looked at ground 10 of the grounds of appealfrom which the issue five was distilled and I have borne in mind that when in an appeal an Appellant employs thephrase that the "judgment is against the weight of evidence", it postulates that there was no evidence which ifaccepted would supported the findings of the trial Court or tribunal or the inference which he had made. It mayalso mean that when the evidence adduced by the Appellant is that adduced by the Respondent on theimaginary scale of justice, the judgment given in favor of the Respondent would be against the weight whichshould have been given, having regard to the totality of the evidence before the Court. See Mogaji V. Odofin(1978) 4 SC 94; UBN Ltd. V. Borini Promo Co. Ltd. (1998) 4 NWLR (Pt. 547) 640; Anyaoke & Ors. V. Adi& Ors. (1986) 3 NWLR (Pt. 751)1.?In law, neither an Appellant nor a Respondent is at liberty to formulate and argue issues for determination in theair without reference to the valid ground (s) of appeal. In other words, for an issue to be valid. it must relate orarise or be connected with a valid ground of appeal, failing which it is liable to be struck for being incompetent.The converse is also true; for a ground to appeal to be competent to be determined on the merit it must give riseto a valid issue for determination, since appeal are argued not on the grounds of appeal but on the issues fordetermination arising there from. Thus, a ground of appeal in which no valid issue is distilled is deemedabandoned and thereby rendered incompetent and also liable to be struck out. See Ressel L.Y. Dakolo & OrsV. Gregory Rewane-Dakolo & Ors. (2011) LPELR - 915 (SC). Thus, the parties to an appeal, as well as theCourt, are bound by the valid grounds of appeal in the formulation of their issues for determination. See NIPC V.Thompson Organization Ltd. & Ors. (1969) 1 All NLR 136 @ p. 142. See also lghedo Dieli & Ors. V.Osakwe Iwuno & Ors. (1996) 4 NWLR (Pt. 445) 622 @ p. 633; Ibrahim V. Nigeria Universal Bank Ltd. 2001)LPELR - 6970 (CA). On ground 10 therefore, the question that readily arises is whether issue five though arisingpartly from ground ten but having excluded the case of the Respondent is still competent? I think the law is wellsettled to the extent that a ground of appeal from which no issue was distilled is deemed abandoned. So also, itis the law that an issue not arising from any of the grounds of appeal is incompetent. Now, what about an issueallegedly distilled midway of a ground of appeal? In law, the result appears to be the same that the issue as wellas the ground is rendered incompetent. In my view therefore, and I so hold, ground 10 from which no competentissue was distilled is also incompetent and is consequently hereby struck out."Per GEORGEWILL, J.C.A. (Pp. 37-40,Paras. E-C) - read in context

9. APPEAL - INTERFERENCE WITH AWARD OF DAMAGES: When an appellate court will not disturb an award ofdamages made by a lower court"In the instant appeal, since the only complaint as regards damages was lack of evidence in proof thereof, andhaving taken time to consider the evidence as led by the Respondent as PW1 as regards his claims for damagestogether with the findings of the Court below on this issue, I find that there was surfeit of evidence of theenormous damages caused the Respondent by the callous acts of continued infringement of the copy right to theRespondent by the Appellant through 'the continuous reproduction and distribution of the musical works of theRespondent and his group long after the expiration of the five years granted in Exhibit Q in 1975. TheRespondent, in my finding therefore, proved his entitlement to damages against the Appellants and the Courtbelow was thus perfectly right to have so held and to award him damages against the Appellants.On the quantum of damages, though not even made an issue by the Appellants in this appeal, I have looked atthe parameters used in the assessment of damages by the Court below leading to its rejection of some of theseveral heads of special damages claim of the Respondent and granting the amount in damages to theRespondent as proved against the Appellants, and I am satisfied, indeed pleased, that the Court below appliedthe correct principles of assessment and award of damages in arriving at the damages awarded to theRespondent against the Appellants, which damages I find further was adequate and neither outrageous nor toomeager. In law, damages awarded in any given case can only be regarded as excessive if it exceeds themonetary jurisdiction of the Court or the monetary claim made by the party himself. It is also the law that theaward of damages is a matter of discretion for a trial Court. Thus, this Court, on the correct principles of award ofdamages as applied by the Court below, cannot interfere with the award of damages as correctly assessed by theCourt below in this appeal. See F.B.N. Plc. V. M O. Nwadialu & Sons Ltd. (2016) 18 NWLR (Pt. 1543) 1. See alsoTidex Nigeria Ltd V. Joy Maskew & Anor. (1998) 3 NWLR (Pt. 542) 412; U.B.A. Plc. V. Eromosele Omiyi (2010) 1NWLR (Pt. 1176) 646; Inland Bank Nigeria Plc. & Anor. V. Fishing & Shrimp Co. Ltd (2010) 15 NWLR (Pt. 1216)403."Per GEORGEWILL, J.C.A. (Pp. 87-89, Paras. C-B) - read in context

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10. APPEAL - INTERFERENCE WITH FINDING(S) OF FACT(S): Instances when an appellate Court will notinterfere with findings of fact of the lower Courts"In the circumstances therefore, having found that the Court below was right in its finding on all the crucial issuesas joined by the parties and had arrived at the correct conclusions in the judgment appealed against as regardsthe claims of the Respondent against the Appellants, in law this Court would have no business interfering withthese correct findings of the Court below. This is so because, an appellate Court has no duty interfering with thecorrect findings of a trial Court even where the reason adduced and relied upon by the trial Court to arrive at thecorrect findings turns out to be 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 issue thus:"An appellate Court is only concerned with whether the judgment appealed against is right or wrong not whetherthe reasons given are right or wrong. Where the judgment is right but the reasons given are wrong, the appellateCourt does not interfere. It is only where the misdirection has caused the Court to come to a wrong conclusionthat the appellate Court will interfere."See also Abaye V Ofili (1986) 1 NWLR (Pt. 15) 134; Ukejianya V. Uchendu 18 WACA 46."Per GEORGEWILL, J.C.A.(Pp. 89-90, Paras. C-B) - read in context

11. CONTRACT - TERMS OF CONTRACT: Whether parties are bound by the terms of their agreement; Duty ofcourt to respect the sanctity of agreement of parties"In law parties to a contract validly and voluntarily entered into by them are bound by the terms of their contractand none of them would be allowed to want out from it except at the pain of damages for breach of the contract.Thus, a Court of law must respect the sanctity of the agreement reached by the parties, where they are inconsensus ad idem as regards the terms and conditions freely and voluntarily agreed upon by them in order toavoid re - writing their agreement for them. See Babatunde V. BON Ltd (2011) 18 NWLR (Pt. 1279) 738 @p. 777,where the Supreme Court had per Adekeye JSC, stated inter alia thus:"In the interpretation of contractual transaction, Court will always hold parties bound by the terms of theiragreements when construed according to the strict, plain and common meaning of the words in the instrumentas they stand."See also Solicitor General, Western Nigeria V Adebonojo (1971) 1 All NLR 178; UBN V. Ozigi (1994) 3 NWLR (Pt.333) 385; AG. Rivers State V. AG. Akwa Ibom State (2011) 8 NWLR (Pt. 1248) 31 at pp. 83 - 84; Hillary Farms LtdV. M/V Mahtra (2007) 14 NWLR (Pt. 1054) 21; Arjay Ltd V. Airline Management Support Ltd (2003) 7 NWLR (Pt.820) 577; Sona Breweries Plc. V. Peters (2005) 1 NWLR (Pt. 908) 478; Owoniboys Technical Services Ltd V. UBNLTD (2003) 15 NWLR (Pt. 844) 545; ldufueko V. Pfizer Products Ltd (2014) 12 NWLR (Pt. 1420) 96; Mobil VJohnson (1961) 1 All NLR 93; Fagbuaro V. Akinbami (2015) 6 NWLR (Pt. 1455) 358 @p. 373; Ihunwo V Ihunwo(2013) 8 NWLR (Pt. 1357) 550 @p. 583."Per GEORGEWILL, J.C.A. (Pp. 79-80, Paras. B-E) - read in context

12. COURT - COMPETENCE OF COURT: Attitude of court where competence of court is in issue"My lords, while in today's jurisprudence of 'substantial justice' the issue of 'mere technicality' no longer holdssway, yet it is truism that competence is the soul of adjudication. It is in this sense the issue of competence canno longer in law truly be regarded as 'mere technicality' but rather be seen as substantial issue of law. In otherwords while eschewing technicality for its sake, a Court can only exercise jurisdiction where all conditionsprecedent to the exercise of its powers have been fulfilled. In Andrew V. INEC (2018) 9 NWLR (Pt 1625) 507 @ pp.540 - 541, the Supreme Court per Okoro JSC., had stated inter alia thus:"The Courts have since departed from its shore. All Courts have now embraced with love the need to deliversubstantial justice to parties who come to seek justice in our Courts. The word 'technicality' has been defined bythis Court to mean a harmless error and I think this is what the use of the word "impliedly" connotes."See also Mrs. Susan Olapeju Sinmisola Olley V. Hon. Olukolu Ganiyu Tunji & Ors. (2013) 10 NWLR (Pt. 1362) 275;Madukolu V. Nkemdilim (1962) 1 All NLR 587. See also P. E. Ltd. V. Leventis Trading Co. Ltd. (1992) 6 SC. (Pt. 1)1@pp. 27 - 28; Dangana & Anor. V. Usman & Ors. (2012)2 SC (Pt. 1)3."Per GEORGEWILL, J.C.A. (Pp. 21-22, Paras.E-E) - read in context

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13. EVIDENCE - EVALUATION OF EVIDENCE: Duty of trial judge to evaluate evidence and nature of the duty of anappellate court in reviewing such evaluation on appeal"In law when an Appellant alleges that a trial Court had not properly evaluated the evidence led by the parties itis simply a call on the appellate Court to consider first whether or not the trial Court had properly evaluated theevidence led before it and if it finds that the trial Court had not, then to proceed to and re - evaluate theevidence in the printed record to determine if the trial Court had made correct findings borne out by theevidence as led by the parties. It is the law that it is only where the trial Court had not properly carried out itssacred duty of dispassionately evaluating the totality of the evidence led and had thus failed in this primary dutythat an appellate Court would have the legal justification to intervene and re - evaluate the evidence on theprinted record in order to make appropriate findings of facts in line with the evidence led and in the dictates ofjustice to the parties. So, until an appellate Court arrives at such a conclusion the need for re - evaluation ofevidence does not arise since an appellate Court has no business interfering with correct findings of a trial Court.See Williams V. Tinubu (2014) All FWLR (pt.755)200. See also Amuneke V. The State (1992) NWLR (Pt. 217)347;Sule Asariyu V. The State (1987) 4 NWLR (Pt. 67) 709; Nkebisi V. State (2010) 5 (Pt. 1188) 471; Woluchem V.Gudi (1981) 5 SC. 291; Enang V. Adu (1981) 12 SC. 25; Abisi & ors. V. Ekwealor & Anor (1993) 6 NWLR (Pt. 302)643; Igago V. The State (1999) 12 SCNJ 140 160; Amala V. State (2004) 12 NWLR (Pt. 888)520. However, incarrying out its re - evaluation, even where it finds that the trial Court had failed to carry out its primary duty todo so properly, it must still be borne in mind by the appellate Court that evaluation and ascription of probativevalue to the evidence led is ordinarily the turf of the trial Court, and thus once a trial Court discharges that dutyon the strength of the evidence placed before it, unless it arrives at perverse conclusions or findings notsupported by the established evidence before it, an appellate Court will not interfere if the conclusions reached iscorrect, even if the reason which is the pathway to the conclusion or finding turns out to be wrong. This is sobecause in law an appellate Court is not so much concerned with the correctness or wrongness of the reasonsadduced by a trial Court for its decisions or conclusions but rather more concerned with whether the decisionreached or conclusion arrived at was correct or wrong; that is the law. See Alhaji Ndayako & Ors. V. AlhajiDantoro & Ors. (2004) 13 NWLR (P4 8139) 187 g p. 198. See also Abaye V. Ofili (1986) 1 NWLR (134 15) 134;Ukejianya V. Uchendu 18 WACA 46. It is thus the law that an appellate Court which had not seen the witnessestestify and observed their demeanor in the witness stand should respect the views of the trial Court and not toreadily substitute its own views for that of the trial Court except where it is shown that the conclusion or findingreached by the trial Court was perverse and for this an appellate Court will readily intervene to re-evaluate theevidence in the printed record if it is shown that the conclusions reached or findings made by the trial Court onthe proved evidence before it do not flow from such proved facts or runs contrary to such proved facts and thusperverse. In such a case, the appellate Court is in good a position as the trial Court to intervene to re-evaluatethe evidence in the printed record to draw necessary inference and make proper findings on the proved andadmitted facts in the record as the justice of the case requires but which the trial Court had failed to do. SeeObajimi V. Adeobi (2008) 3 NWLR (Pt. 1075) 1 at p. 19. See also Owor V. Christopher (2010) All FWLR (Pt. 511)962 p. 992; Sogbamu V. Odunaiya (2013) All FWLR (Pt. 700) 1249 at p. 1302; Mini Lodge V. Ngei (2010) All FWLR(Pt. 506) 1806 @ pp. 1820 -1821; Sa'eed V. Yakowa (2013) All FWLR (Pt 692) 1650 @ p, 1681.In considering the conclusions and findings reached by the trial Court, I am aware that it is the prerogative of atrial Court which sees and hears the witnesses to choose which to believe and to ascribe probative value to suchevidence, either oral or documentary. Thus, a trial Court being the master of the facts, must base his inferences,evaluation or assessment and findings on the available evidence adduced before it and therefore, if its findingsmust stand it must not be premised on extraneous facts or matters or conjectures outside the evidence given atthe trial. See Emeka V. The State (2014) LPELR 3472011 (SC); Afolalu V. The State (2010) 16 NWLR (Pt. 1220)584; Ejeka V. The State (2003) 7 NWLR (Pt. 819) 408; Isibor V. The State (2002) 4 NWLR (pt. 758) 241; Iko V. TheState (2001) 14 NWLR (Pt. 732) 221; Baba V. The State (1994) 7 NWLR (Pt. 355) 195; The State V. Musa Danjuma(1997) 3216 (SC) 1; Arehia V. The State (182) NSCC 85."Per GEORGEWILL, J.C.A. (Pp. 57-61, Paras. E-F) - read incontext

14. EVIDENCE - CROSS-EXAMINATION: Importance of cross-examination; Effect of evidence elicited during cross-examination"It has become imperative since the introduction of written statement of oath as evidence in chief in civilproceedings that cross examination is now the real test of the veracity of witnesses. The reason being that mostwritten statement of oath nowadays are mere replica of the pleadings of the parties. It is thus by the cross-examination evidence the true worth of the evidence of a witness is ascertained. So it was with the DW1 whounder the intense heat of cross examination virtually admitted the crux of the case of the Respondent thatExhibit Q was for a five-year period and that long after the expiration of the five-year period the Appellants werestill reproducing and distributing the musical works of the Respondent. DW1 was even so candid when headmitted that he cannot remember when last any form of royalty was last paid to the Respondent for the use ofhis musical works by the 1st Appellant.The law is well settled that evidence elicited in cross examination, as in the instant appeal from the DW1 by theRespondent, which supports the case as pleaded by the cross-examining party is good evidence on which a trialCourt, such as the Court below can legitimately act to make appropriate findings of facts. See Daggash v. Bulama(2004) 14 NWLR (Pt. 892) 144."Per GEORGEWILL, J.C.A. (Pp. 75-76, Paras. B-B) - read in context

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15. JURISDICTION - JURISDICTION OF THE FEDERAL HIGH COURT: Exclusive jurisdiction of the Federal HighCourt with respect to copyright matters"Now, the claim of the Respondent was founded on vesting of copy right in his musical works, alleged reversionof copy right at the expiration of five years as granted in Exhibit Q, alleged infringement of his copy right andthen of his group in their musical works by the Appellants and damages for infringement of the copy right in hismusical works. Their claims are, in my finding, strictly within the exclusive jurisdiction of the Court below and tono other Court else. The Court below had averted its mind to this issue and had correctly arrived at theconclusion that the claim bordering on the copy right of the Respondent was clearly within its competence tohear and determine.On the issue of lack of jurisdiction of the Court below to award damages as raised by the Appellants on theground that there was no evidence of any entitlement to damages by the Respondent against the Appellants, itdoes appear to me that it is the conception that a Court which has the jurisdiction to entertain the subject matterof a suit would also need another form of jurisdiction to award damages in the same suit is clearly amisconception. In law, once a Court has the jurisdiction to determine a claim before it, it would also have thepower to award damages if made out by the party seeking it. A Court does not need additional or separatejurisdiction to award damages, since the power to award damages if made out is one concomitant orconterminous with the jurisdiction to determine the claims before it. Thus, in practice, a challenge to the awardof damages by a Court is usually founded on either that the entitlement to damages was not made out by theparty claiming it or that the Court had applied wrong principles in the assessment and eventual award ofdamages. It can hardly be a jurisdictional issue once the Court has the jurisdiction over the claims in the suit.My Lords, on the state of the pleadings and evidence as led by the parties, when put on the imaginary scale ofjustice, the consistent, credible and cogent evidence of the Respondent preponderates and weighs far more thanthe spurious and porous evidence led by the Appellants, and I find and I so hold that the Court below was correctand on a firmer ground when it held that 'the Appellants had, despite the expiration of the five years as grantedto the 1st Appellant by the Respondent in Exhibit Q and the orders of injunction by the Court below against them,persisted in and continued the reproduction and distribution of the musical works of the Respondents andthereby infringed on his copy right to those musical works. I find further that the Court below was also right whenit held that Exhibits 01 - 06 and P1 - P7 were evidence of infringement of the copy right in the musical works ofthe Respondent by the Appellants and that the Respondent having proved the infringement of the copy right tohis musical works by the Appellants, long after the expiration of the five year terms granted in Exhibit Q, was inlaw entitled to damages against the Appellants. In law, a claim of infringement of copyright is actionable at thesuit of the owner and all such relief by way damages, injunctions, accounts or otherwise shall be available to asClaimant as is available in any corresponding proceedings in infringement of other proprietary rights. See Section16 (1) of the Copyright Act C28. LFN 2004. See also M.C.S. (Nig.) GTE V. Adeokin Records (2007)13 NWLR (Pt.1052) 616 @p. 627."Per GEORGEWILL, J.C.A. (Pp. 84-87, Paras. C-C) - read in context

16. LEGAL PRACTITIONER - STAMP/SEAL: Effect of failure to affix the approved seal and stamp of the NigerianBar Association on a legal document"On first ground of the preliminary objection challenging the competence of the notice of appeal, it wascontended for the Respondent that the Appellants' notice of appeal was incompetent in that it was filed in breachof the mandatory provisions of Rule 10(1) of the Rules of Professional Conduct for the Legal Profession, 2007which requires that every legal process settled by a counsel must be stamped with the seal of the affectedcounsel. At the hearing, the Appellants, on the face of this objection, did not make an application to enable themaffix the stamp or seal before the adoption of the briefs of the parties but rather included a prayer to that effectin their reply brief. In the circumstances of this appeal, I have asked myself to what purpose or purport is such anapplication embedded in a reply brief adopted at the hearing of an appeal and when would such an applicationeven if granted in the judgment of this Court be implemented to render the otherwise unstamped notice ofappeal competent in line with the mandatory provisions of Rule 10(1) of the Rules of Professional Conduct for theLegal Profession, 2007? In law a document required to be filed in the Court but not affixed with the seal of thelegal practitioner who settled is ordinarily not incompetent but merely voidable. In Senator Bello Sarkin Yaki (Rtd)& Anor V. Senator Atiku Abubakar Bagudu & Ors (2015) LPELR-25721 (SC), the Supreme Court held inter aliathus:"It is my humble view that the legal document so signed and or filed is not null and void or incompetent like thecase of a process signed in the name of a corporation or association (even lawyers)."However, such a Court process would become void or incompetent if at the end of the day or the proceedings theseal and stamp of the legal practitioner was not still affixed. In the instant appeal, as I write this judgment, thenotice of appeal filed by the Appellants on 2/2/2016, though attached with receipt of payment for NBA stamp andseal of one Folajimi Akinla Esq., had remained not affixed with the stamp and seal of one Mirukae K. Dioru Esq.,the legal practitioner indicated thereon to have signed the notice of appeal at page 1094 in volume III of therecord of appeal.?In the circumstances therefore, the notice of appeal which ordinarily was not rendered incompetent by the initialfailure to be affixed with the stamp and seal of the legal practitioner who had signed it had become incompetentby the failure of the legal practitioner to so affix his stamp and seal at the end of the proceeding up to the time ofthe writing of this judgment. See Rule 10(1) of the Rules of Professional Conduct for Legal Practitioners, 2007.See also Adewale & Anor V. Adeola & Ors. (2015) LPELR -25972 (CA)."Per GEORGEWILL, J.C.A. (Pp. 24-26, Paras.A-C) - read in context

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17. PRACTICE AND PROCEDURE - PRELIMINARY OBJECTION: Proper way to raise an objection to thecompetence of a notice of appeal"Now, a preliminary objection that an appeal should not be heard and determined on the merit is a serious issueand if founded on grounds alleging incompetence of the appeal it should be taken seriously and considered andresolved one way or the other since without competence there is really no basis for adjudication and decision onthe merit by a Court. Thus an issue bordering on the competence or incompetence of the notice of appeal is onewhich can validly be raised by means of a notice of preliminary objection. In Inspector Isa Sarki V John Lamela(2016) LPELR - 40338 (CA), I had reiterated the above position of the law inter alia thus:"It is the law that where the purpose of an objection is merely to challenge some of the grounds of appeal andnot the competence of the entire appeal, the best procedure is by way of a motion on notice since its successwould not in an way terminate the entire appeal in limine. On the other hand, where the purpose of an objectionis to terminate in limine the entirety of the appeal, the best procedure is by way of a notice of preliminaryobjection challenging the competence of the entire appeal." See also Odunukwe V Ofomata (2010) 18 NWLR (P.1225) 404. See also Lafia Local Government V. Nasarawa State Government (2012) 17 NWLR (Pt. 1328) 124."PerGEORGEWILL, J.C.A. (Pp. 22-23, Paras. F-F) - read in context

18. PRACTICE AND PROCEDURE - ISSUE OF JURISDICTION: Whether the issue of jurisdiction can be raised forthe first time at the appellate Court"I am aware that in law where an issue touches on jurisdiction it can be raised at any stage of the proceedingsand even for the first time on appeal, yet an issue of jurisdiction cannot be raised in the air but must relate to avalid ground of appeal if being raised for the first time on appeal. In other words, an Appellant cannot in theabsence of any valid ground of appeal touching on jurisdiction merely raise an issue of jurisdiction and canvassarguments thereon merely in his brief."Per GEORGEWILL, J.C.A. (P. 68, Paras. B-D) - read in context

19. PRACTICE AND PROCEDURE - IRREGULAR PROCEDURE/PROCEDURAL IRREGULARITY: Appropriate timeto challenge a procedural irregularity and the guidelines to be followed and effect of failure thereof"It is also the law that where the irregularity complained of by a party is a mere irregularity, not one going to theroot of the claim of the other party, then such an irregularity can be waived by the party who failed to promptlyraise an objection to it and proceeds to take fresh or further steps in the proceedings. Thus, in law it is onlyfundamental irregularity touching on jurisdiction that cannot be waived. See Saude V Abdullahi (1989) LPELR -3017 (SC); Professor Baba Garegy Bajoga V. The Government of the Federal Republic of Nigeria & Ors(2007) LPELR - 8924 (CA).In Momoh V. Adedoyin (2018) 12 NWLR (Pt 1633) 345 at p. 367 this Court had per Ogbuinya JCA,, stated inter aliathus:"It is trite that a party should register an objection to the violation of the rules of Court timeously at thecommencement of the action or when the irregularity is noticed. If a party dithers/delays in his protestationagainst non-observation of the rules of Court, and proceeds to take a step in the matter, the law deems him ashaving acquiesced in the irregularity and his objection taken as belated. Such an indolent party will in the sight ofthe law, be caught in the intractable vortex of waiver..."See also Prince Oyesule Alabi Ogundare & Anon V. Shittu Ladokun Ogunlowo & 3 Ors. (1997) 5 SCNJ281; Edebiri v. Edebiri (1997) 4 NWLR (Pt. 4980) 165 @ p. 174;. International Messengers Nig. Ltd. V. PegoforIndustries Ltd. (2005) 15 NWLR (Pt.947) 1 @ p. 19; Ezomo V. AG. Bendel State (1986) 4 NWLR Pt. 36) 448;Kayode V. Odutola (2001) 11 NWLR (Pt. 725) 659. Having considered the entirety of the facts relating to and thesubmissions on the written statements on oath of the PW1, I find that the contentions of the Appellants that thecase of the Respondent was not supported by any admissible evidence by reason of the alleged incompetence ofthe two written statements on oath of the Respondent adopted as his evidence in chief as PW1 is misconceivedand lacking in merit and ought to be discountenanced. The Respondent had an additional written statement onoath unaffected by the challenge of the Appellants which on its own stood as evidence in support of the case ofthe Respondent. The Appellants who were aware of the alleged irregularities, which is mere irregularity, did notraise any objection to their being adopted as evidence by the PW1 but rather proceeded to cross examine thePW1 on them and thereby waived their right to complain. Most importantly in none of the ten grounds of appeal,both the valid and invalid grounds, did the Appellant complain about the incompetence of the written statementson oath of the PW1, which was merely smuggled into the brief of argument. In the circumstances, therefore, thecontention that the Respondent's case was not supported by anycompetent evidence is hereby discountenanced for being erroneous, mischievous and lacking in merit."PerGEORGEWILL, J.C.A. (Pp. 68-71, Paras. D-A) - read in context

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BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering

the Leading Judgment): This is an appeal against the

Judgment of the Federal High Court, Lagos Judicial

D i v i s i o n , C o r a m ; J . T . T s o h o J . , i n S u i t N o .

FHC/L/CS/196/1997: King Sunday Adeniyi Adegeye V.

African Songs Limited & Others delivered on 12/11/2015, in

which some of the claims of the Respondent as Claimant

were granted against the Appellants as Defendants, while

the counter - claim of the 1st Appellant against the

Respondent was dismissed.

The Appellants were thoroughly peeved by the said

judgment of the Court below and had appealed against it

vide a notice of appeal filed on 2/2/2016 on ten grounds at

pages 1088 - 1094 in Vol. III of the record of appeal. The

three volume records of appeal were transmitted to this

Court on 22/3/2016. The Appellants’ brief was settled by

Ademola Olowoyeye Esq., of Ademola Olowoyeye & Co, and

filed on 18/10/2016 but was deemed properly filed on

25/10/2017. The Respondent's brief was settled by Abayomi

Adeniran Esq., Chief F. O. Fagbohungbe SAN & Co, and

filed on

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4/10/2018 but was deemed properly filed on 17/10/2018.

The Appellants' Reply brief was settled by Erezi Joy

Etemire Esq., and filed on 17/10/2018.

At the hearing of the Appeal on 17/10/2018, Abimbola

Olowoyeye Esq., learned counsel for the Appellants,

appearing with C. I. Ajakaiye Esq., adopted the Appellants'

brief and Reply brief as their arguments and urged the

Court to allow the appeal, set aside the judgment of the

Court below and dismiss the claims of the Respondent as

Claimant before the Court below. On their part, A. A.

Adeniran Esq., learned counsel for the Respondent,

appearing with O. Omotoye Esq, adopted the Respondent's

brief as their arguments and urged the Court to dismiss the

appeal for lacking in merit and to affirm the judgment of

the Court below.

By a further amended Writ of Summons filed along with a

3rd amended statement of claim on 12/6/2015, the

Respondent as Claimant claimed against the Appellants as

Defendants jointly and severally the following reliefs, to

wit:

1. The sum of N1, 000, 000, 000. 00 as general

damages against the 1st Defendant for breach of

contract.

2. The sum of N1, 000, 000, 000. 00 against all the

Defendants jointly and severally, as

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damages for the continuous infringement of the

copyright in the musical works/songs of the Plaintiffs.

3. An order directing the 1st, 2nd, 3rd, 4th and 5th

Defendants jointly and severally, to deliver all the

copies of the photographs or likeness of King Sunny

Ade in their possession, to King Sunny Ade.

4. An order of this Honourable Court, restraining all

the Defendants jointly and severally, from printing

photographs or likeness of King Sunny Ade on any

musical works whatsoever.

5. An order against the 1st, 2nd, 3rd, 4th, 5th, 6th

and 7th Defendants to jointly and severally, deliver all

the copies of the musical works/songs, which are the

subject matter of this suit in the possession of the

Defendants, their privies or agents, including all the

copies in compact disc, cassettes form or any other

form.

6. An order directing the 1st, 2nd, 3rd and 4th

Defendants jointly and severally, to deliver to King

Sunny Ade, (who is the author, composer and owner

of the said musical works) the master tapes of the

musical works/songs in its original form and in any

other form used by the said Defendants in the

infringement of the

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copyright in the said musical works.

7. An order directing the 1st and 2nd Defendants, to

deliver the master tapes of all the musical works

which are the subject matter of this suit, either in its

original form or in any other form, recorded under

the label of "African Songs" particularly all those

musical works/songs performed by the Plaintiffs -

while known as the Green Spot Band, "Sunny Ade and

His Green Spot Band" and "Sunny Ade and His

African Beats".

8. An order of perpetual injunction restraining all the

Defendants, jointly and severally, whether by

themselves or their servants, officers, partners,

agents and/or privies or otherwise, howsoever, from

the continued infringement of the musical works

which are the subject matter of this suit, either by

way of sale, distribution, manufacturing,

reproduction, hiring or otherwise or for any purpose

prejudicial to the copyright of King Sunny Ade.

In the alternative to relief the above:

9. An inquiry as to damages for the infringement of

copyright on the aforementioned musical works/songs

of the Plaintiffs.

10. The sum of N50, 000,000.00 from the 5th

Defendant as damages for the infringement of the

copyright

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in the photograph likeness of King Sunny Ade, used

on the jacket cover of the works/songs of the

Plaintiffs in compact discs and cassettes form.

11. The sum of N500,000,000.00 against the 1st, 2nd,

3rd, 4th, 5th, 6th and 7th Defendants jointly and

severally, as damages for conversion of the copyright

in the musical works/songs or photographs or

likeness of King Sunny Ade, printed without the

Plaintiffs' authority, or that of King Sunny Ade, on

cassettes jacket cover of the musical works of the

Plaintiffs in compact discs and cassettes form.

12. An inquiry as to damages caused by the

infringement or at the option of King Sunny Ade, an

account of the profits made by the 5th, 6th and 7th

Defendants by the said infringement and an order for

the payment of the amount found to be due on the

taking of such account.

13. Further or other reliefs as may be deemed fit by

the Hon Court."

See pages 950-952 of the record of appeal.

On 15/1/2014, the Court below granted the Appellants

leave to amend their joint statement of defence to include

the 1st Appellant's counter - claim against the Respondent

for the following reliefs, namely:

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1. A declaration that the copyright in all the musical

works, which are composed by the Plaintiff pursuant

to the agreement made on 6/10/1970 between the

Plaintiff and the 1st Respondent still subsists in the

1st Defendant.

2. A declaration that the action instituted by the

Plaintiff in this case and especially seeking and

obtaining an order of injunction restraining the 1st

Defendant from exercising the rights incidental to the

ownership of the copyright in all the musical works

produced by the Plaintiff pursuant to the agreement

of 6/10/1070 is an abuse of judicial process

undertaken to the prejudice and financial loss of the

1st Defendant.

3. The sum of N500, 000, 000. 00 being damages

suffered by the 1st Defendant between 1997 and 2013

and until final judgment arising from the Plaintiff's

resort to and obtaining an order of injunction which

they knew or ought to know constitutes an abuse of

process.

See pages 650 - 654 of the record of appeal.

BRIEF STATEMENT OF FACTS

The Respondent, King Sunday Adeniyi Adegeye, a.k.a. King

Sunny Ade, had for himself and on behalf of other

members

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of the music group known as the "Green Sport Band"

commenced an action against the Appellants and others as

Defendants claiming several reliefs. The gist of the case of

the Respondent, as Claimant before the Court below, as can

be gleaned from the pleadings and evidence, both oral and

documentary, as in the printed record was that sometime in

1970, King Sunny Ade and the members of his music group,

then known as Green Spot Band, entered into an

agreement, as in Exhibit Q, with the 1st Appellant in

respect of some musical works of the Respondent and

his music group for a period of five years. By the terms of

exhibit Q, the 1st Appellant was to produce, reproduce and

sell certain musical works, which were contained in some

master tapes handed over to the 1st Appellant and that the

right thereby granted to the 1st Appellant shall be for a

period of 5 years only commencing from 5/10/1975.

However, upon the expiration of the agreement between

the 1st Appellant and the Respondent, the 1st Appellant

deliberately refused and/or neglected to return the master

tapes containing the Respondent's musical works despite

several demands for the return of those master tapes. The

Respondent is the real

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owner of the musical works and instead of returning the

relevant master tapes to him, the 1st Appellant, acting in

conjunction with the 2nd Appellant, its sister company,

continued with the manufacturing, reproduction and

distribution of the Respondent's musical works, hence the

action against the Appellants and the other Defendants

before the Court below for the various reliefs.

On the other hand, the gist of the case of the Appellants, as

Defendants before the Court below, as can be gleaned from

their pleadings and evidence, both oral and documentary,

as in the printed record, was that by the agreement duly

entered into between the 1st Appellant and the

Respondent, as in Exhibit Q which was still valid and

subsisting, the Appellant has the right to the continued

manufacturing, reproduction and distribution of the

musical works of the Respondent as were duly assigned to

the Appellant by the Respondent without any interference

by the Respondent, hence the counter claim against the

Respondent by the 1st Appellant for the undue

interferences by the Respondent with the valid and

subsisting agreement between the parties. See

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pages 8 - 10, 425 - 473, 678- 688, 717 — 725, 784 - 808,

936 - 952 of the records of appeal.

At the close of pleadings, by the filing of the Respondent's

amended Reply to the Appellants' Statement of Defense

and Defense to the 1st Appellant's Counter claim, the

matter proceeded to trial. The Respondent as Claimant, the

Appellants as 1st and 2nd Defendants and the 5th

Defendant before the Court below called one witness each,

tendered some documents admitted in evidence and closed

their respective cases. The other Defendants did not call

any witness and were subsequently foreclosed by the Court

below. At the close of their cases, the parties filed and

exchanged written addresses, which were subsequently

duly adopted by their respective counsel and on

12/11/2015, the Court below delivered its judgment, in

which it found for the Respondent on his claims against the

Appellants while dismissing the 1st Appellant's counter

claim, hence the appeal to this Court by the Appellants. See

pages 953 - 1007, 1021 - 1062 of the records of appeal.

ISSUES FOR DETERMINATION

In the Appellants' brief, five issues were distilled as arising

for determination from the ten grounds of appeal, namely:

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1. Whether having regards to the state of the

pleadings and the evidence, the Court below was

correct in its decision that the agreement between

the Appellants and the Respondent had terminated in

1975 and that from thenceforth copyright in the

musical works pleaded had reverted to the

Respondent? (Distilled from grounds 1, 2, 3, 4, & 6)

2. Whether having regard to the state of the

pleadings and evidence, the Court below was right to

hold that the Respondent who clearly claimed to be

acting for and on behalf of the members of the Green

Spot Band could institute the action in his name and

claim reliefs for himself for the infringement of

copyright? (Distilled from ground 5)

3. Whether the Court below was right to place the

burden of pirated works on the Appellants? (Distilled

from ground 7)

4. Whether the Court below had the jurisdiction to

award damages as was done in this case or at all when

there was no evidence of such damages? (Distilled

from ground 8)

5. Whether the Court below was right in dismissing

the counter- claim of the 1st Appellant?

In the Respondent's brief, nine issues were distilled as

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arising for determination in this appeal, namely:

1. Having regard to the Respondent's pleadings and

the evidence led by the Respondent at plenary trial,

whether the Court below made a case for the

Respondent when it held that the case of the

Respondent was in relation to infringement of

copyright? (Distilled from ground 1)

2. Whether the Court below was right in holding that

when exhibit Q is considered holistically, the

reasonable conclusion is that the copyright in the

musical works in issue were actually assigned by the

Respondent to the 1st Appellant for a period of 5

years and not for eternity? (Distilled from grounds 2

and 3).

3. Whether the Court below was right in holding that

all the rights ensuring to the 1st Appellant in respect

of the musical works in issue expired on 5/10/1975

and thereafter reverted to the Respondent? (Distilled

from ground 4)

4. Whether the Court below was right in holding that

having regard to the peculiar facts and circumstances

of the case that King Sunny Ade was entitled to

institute the action in his name and seek the reliefs

relating to the infringement of the copyright of the

musical works in issue? (Distilled from ground 5)

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5. Whether the Court below was right in holding that

upon the expiration of the contract in exhibit Q, the

Appellants had no right to continue the production of

the musical works in issue without the express

authorization of the Respondent? (Distilled from

ground 6)

6. Whether the Court below was right when it stated

that DW1 had the duty to explain how he knew that

exhibits P4 to P7 and exhibits 01 to 05 were pirated

works and who pirated them? (Distilled from ground

7)

7. Whether the Court below properly exercised its

jurisdiction in awarding damages against the 2nd

Appellant and also granting the other reliefs sought

by the Respondent against the 2nd Appellant?

(Distilled from ground 8)

8. Whether the Court below was right in dismissing

the 1st Appellant's counter – claim against the

Respondent? (Distilled from ground 9)

9. Having regard to the preponderance of evidence

before the lower Court, whether the Court below was

right in entering judgment for the Respondent?

(Distilled from ground 10)

I have given adequate consideration to the claims of the

Respondent as Claimant as endorsed in the Writ of

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Summons, the pleadings and evidence, both oral and

documentary, as led by the parties as in the printed record.

I have also considered the submissions of counsel to parties

in their respective briefs in the light of the issues as joined

by the parties and the findings in the judgment of the Court

below and it does appear to me that the real issues arising

for determination, as aptly captured in the Appellants'

brief, can be conveniently harmonized into the following

two issues, to wit:

1. Having regards to the state of the pleadings and

the issues joined therein and the evidence led thereon

by the parties, as well as the applicable laws, whether

the Court below was right when it held that the

Respondent had the capacity to institute the action

and proved some of his claims against the Appellants

and was thus entitled to judgment in some of his

claims against the Appellants? (Encompassing

Appellants' issues 1, 2, 3 and 4 and Respondent's

issues 1, 2, 3, 4, 5, 6, 7 and 9)

2. Having regards to the state of the pleadings and

the issues joined therein and the evidence led thereon

by the parties,. as well as the applicable laws,

whether

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the Court below was right when it held that the

1st Appellant failed to prove his counter- claim and

was thus not entitled to judgment on his counter -

claim against the Respondent? (Encompassing

Appellants' issue 5 and Respondent's issue 8)

It is my view that a consideration of the above two issues

would involve the due consideration of all the five issues as

distilled in the Appellants' brief as well as the nine issues as

distilled in the Respondent's brief. I shall therefore,

consider and determine these two issues ad seriatim but

first there is a preliminary objection embedded in the 1st

Respondent's brief challenging the competence of the

notice of appeal and which being an issue touching on

jurisdiction must be considered and resolved one way or

the other first before if need be the merit or otherwise of

the appeal shall be considered. I therefore, proceed to

consider the preliminary objection anon!

NOTICE OF PRELIMINARY OBJECTION

By a notice of preliminary objection embedded in the

Respondent's brief, the Respondent is challenging the

competence of the notice of appeal filed on 2/2/2016 as well

as some of the grounds 1, 7, 8 and 10 of the grounds of

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appeal on the following grounds, namely; that the

Appellant's Notice of Appeal is incompetent for the reason

that the Nigerian Bar Association approved seal/stamp of

the legal practitioner who purportedly signed the said

Notice of Appeal was not affixed on the said process; that

grounds 1, 7, 8 and 10 the grounds of appeal as well as

issues 1, 3 and 4 distilled from them are incompetent in

that: ground one was argumentative, based on inconsistent

particulars and issue one purportedly there from does not

flow from ground 1; ground 7 is against an obiter in the

judgment appealed against; ground 8 has no issue distilled

there from since issue four purportedly distilled there from

does not flow from ground 8 and ground 10 also had no

issue distilled there from since issue five purportedly

distilled there from does not flow from ground 10.

RESPONDENT'S COUNSEL SUBMISSIONS

Learned Counsel for the Respondent had submitted that

although on the Appellants' notice of appeal it was

indicated as signed by one "Mirukae K. Dioru (Miss)", the

receipt issued by Access Bank Plc. for the payment of the

Nigerian Bar Association stamp and seal, which was

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attached to the said notice of appeal, was issued in favour

of one "Akinla Folajimi" and contended that not only was

that a deliberate attempt to mislead this Court by attaching

a payment receipt of another counsel which was not issued

to the counsel who purportedly signed the said notice of

appeal, it is the law that any Court process that does not

have the stamp/seal issued by the Nigerian Bar Association

affixed thereon is to be regarded as having not been

properly signed or filed and same and thus incompetent

and urged the Court to so hold and to strike out the

Appellants' notice of appeal for being filed in contravention

of the requirements of Rule 10(1) of the Rules of

Professional. Conduct for Legal Practitioners, 2007.

Counsel relied on Adewale & Anor V Adeola & Ors.

(2015) LPELR - 25972 (CA).

It was further submitted, in the alternative in the unlikely

event that the Court holds that the notice of appeal was

competent, that grounds 1, 7, 8 and 10 of the Appellants'

grounds of appeal together with issues 1, 3 and 4,

purportedly formulated from the said grounds by the

Appellants, are incompetent and should be struck out.

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On ground 1, it was submitted that it was incompetent in

that it was argumentative and on inconsistent particulars,

as well as issue 1 purportedly distilled from it was also

incompetent as it does not flow from the said ground 1 and

urged the Court to strike out ground 1 together with issue

one for being both incompetent. Counsel relied on NIPC V.

Thompson Organization Ltd. & Ors. (1969) 1 All

NLR 136 @ p. 142; Ignedo Dieli & Ors V. Osakwe

Iwuno & Ors. (1996) 4 NWLR (Pt. 445) 622 ® p. 633;

Ibrahim V Nigeria Universal Bank Ltd. (2001) LPELR

- 6970 (CA); Okpuzu V. Uzor & Ors. (2005) LPELR -

7476 (CA); Federal Housing Authority V. Kalejaiye

(2010) 10 NWLR (Pt. 1226) 147.

On ground 7, it was submitted that it was incompetent in

that the complaint therein is not against any of the ratio in

the judgment appealed against but merely relates to an

obiter dicta of the Court below, which was made in passing

in the course of evaluating the evidence led by the parties

at trial and contended that in law it is not every statement

made by a Court in the course of its judgment that can be

made a ground of appeal and urged the Court to so hold

and

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strike out ground 7 together with issue three purportedly,

distilled there from for being both incompetent. Counsel

relied on Gallaher Ltd. & Anor V. British America

Tobacco (Nigeria) Ltd. & Ors. (2014) LPELR - 24333

(CA).

On grounds 8 and 10, it was submitted that they were also

incompetent in that no valid issue was distilled from them

since issues four and five do not flow from grounds 8 and

10 respectively and thus each of grounds 8 and 10

remained abandoned and therefore liable to be struck out

and contended that in law a ground of appeal from which

no valid is distilled is incompetent and urged the Court to

so hold and to strike out grounds 8 and 10 together with

issues four and five for being both incompetent. Counsel

relied on Ressel L.Y. Dakolo & Ors V. Gregory Rewane

Dakolo & Ors. (2011) LPELR – 915 (SC).

APPELLANTS' COUNSEL REPLY SUBMISSIONS

Learned Counsel for the Appellants had submitted that the

submissions that the insinuation that the Appellants had set

out to mislead the Court was unbecoming as there was no

basis for such an assertion since there was no advantage to

be taken by the Appellant over the issue of the

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receipt for payment for NBA stamp and seal of Mr. Akinla

Folajimi, whose name is also on the process as Counsel and

contended that both Akinla Folajimi Esq., and Mirukae K.

Diem Esq., whose name was also listed as counsel on the

notice of appeal have their respective names on the roll of

Legal Practitioners in Nigeria and had not committed any

offence of holding out herself as a Legal Practitioner under

Section 22 of the Legal Practitioners Act, 2004 and urged

the Court to hold that in law the failure of a legal

practitioner to affix the NBA stamp/seal is not one that can

void the process as it is a mere irregularity that can be

corrected. Counsel relied on Senator Bello Sarkin Yaki

(Rtd) & Anor V. Senator Atiku Abubakar Bagudu &

Ors (2015) LPELR - 25721 (SC).

In the light of the above decision, learned counsel for the

Appellant then applied for the leave of the Court to direct

counsel who signed the notice of appeal to affix her NBA

stamp and seal to regularize same and contended that the

main thrust of administration of justice is the rendering of

substantial justice to the parties and not undue reliance on

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technicality as sought to be done by the Respondent's

counsel and urged the Court to discountenance the

preliminary objection and determine the appeal on its

merit. Counsel relied on Andrew V. INEC (2018) 9

NWLR (Pt. 1625) 507@pp. 540 -541.

On ground 1, it was submitted that the objection was

misconceived in that ground 1 is competent as a complaint

that the basis of the judgment of the Court below is an

infringement of copyright, when on the contrary in the

pleadings no such case was made by the Respondent and

therefore, such a decision is not one supported by evidence

and the pleadings and contended that issue one adequately

covers grounds 1, 2, 3, 4, & 6 and urged the Court to hold

that ground was not argumentative but rather succinctly

pointed out how the judgment of the Court below was in

error. Counsel relied on Awusa V. Nigerian Army (2018)

12 NWLR (pt 1634) 421@p. 448.

On ground 7, it was submitted that it was based on the

finding or decision of the Court below where the issue was

that under cross - examination certain cassettes and

records were shown to Appellants' witness and he admitted

the names on the labels were the Appellants' but went

ahead

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to state that it was pirated and contended that by the

decision of the Court below it had erroneously shifted the

burden of proof that those cassettes were pirated unto the

Appellant and urged the Court to hold that ground 7 was

competent and to overrule the preliminary objection

challenging its competence.

On ground 8, it was submitted that it was competent and

was argued on competent and valid issue 4 in a wholesome

consideration of the case of the Respondent against the

Appellants and urged the Court to so hold and to overrule

the preliminary objection challenging its competence.

On ground 10, it was submitted that it was competent and

surged on competent and valid issue four and urged the

Court to so hold and to overrule the preliminary objection

challenging its competence and to dismiss the preliminary

objection for being misconceived and lacking in merit.

RESOLUTION OF PRELIMINARY OBJECTION

My lords, while in today's jurisprudence of 'substantial

justice' the issue of 'mere technicality' no longer holds

sway, yet it is truism that competence is the soul of

adjudication. It is in this sense the issue of competence can

no longer in

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law truly be regarded as 'mere technicality' but rather be

seen as substantial issue of law. In other words while

eschewing technicality for its sake, a Court can only

exercise jurisdiction where all conditions precedent to the

exercise of its powers have been fulfilled. In Andrew V.

INEC (2018) 9 NWLR (Pt 1625) 507 @ pp. 540 — 541,

the Supreme Court per Okoro JSC., had stated inter alia

thus:

"The Courts have since departed from its shore. All

Courts have now embraced with love the need to

deliver substantial justice to parties who come to seek

justice in our Courts. The word 'technicality' has been

defined by this Court to mean a harmless error and I

t h i n k t h i s i s w h a t t h e u s e o f t h e w o r d

"impliedly" connotes."

See also Mrs. Susan Olapeju Sinmisola Olly V. Hon.

Olukolu Ganiyu Tunji & Ors. (2013) 10 NWLR (Pt.

1362) 275; Madukolu V. Nkemdilim (1962) 1 All NLR

587. See also P. E. Ltd. V. Leventis Trading Co. Ltd.

(1992) 6 SC. (Pt. 1)1 @pp. 27 - 28; Dangana & Anor.

V. Usman & Ors. (2012)2 SC (Pt. 1)3.

Now, a preliminary objection that an appeal should not be

heard and determined on the merit is a serious issue and if

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founded on grounds alleging incompetence of the appeal it

should be taken seriously and considered and resolved one

way or the other since without competence there is really

no basis for adjudication and decision on the merit by a

Court. Thus an issue bordering on the competence or

incompetence of the notice of appeal is one which can

validly be raised by means of a notice of preliminary

objection. In Inspector Isa Sarki V John Lamela (2016)

LPELR — 40338 (CA), I had reiterated the above position

of the law inter alia thus:

"It is the law that where the purpose of an objection

is merely to challenge some of the grounds of appeal

and not the competence of the entire appeal, the best

procedure is by way of a motion on notice since its

success would not in an way terminate the entire

appeal in limine. On the other hand, where the

purpose of an objection is to terminate in limine the

entirety of the appeal, the best procedure is by way of

a notice of preliminary objection challenging the

competence of the entire appeal."

See also Odunukwe V Ofomata (2010) 18 NWLR (P.

1225) 404. See also Lafia Local Government V.

Nasarawa State Government (2012) 17 NWLR (Pt.

1328) 124.

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On first ground of the preliminary objection challenging the

competence of the notice of appeal, it was contended for

the Respondent that the Appellants' notice of appeal was

incompetent in that it was filed in breach of the mandatory

provisions of Rule 10(1) of the Rules of Professional

Conduct for the Legal Profession, 2007 which requires that

every legal process settled by a counsel must be stamped

with the seal of the affected counsel. At the hearing, the

Appellants, on the face of this objection, did not make an

application to enable them affix the stamp or seal before

the adoption of the briefs of the parties but rather included

a prayer to that effect in their reply brief.

In the circumstances of this appeal, I have asked myself to

what purpose or purport is such an application embedded

in a reply brief adopted at the hearing of an appeal and

when would such an application even if granted in the

judgment of this Court be implemented to render the

otherwise unstamped notice of appeal competent in line

with the mandatory provisions of Rule 10(1) of the Rules of

Professional Conduct for the Legal Profession, 2007?

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In law a document required to be filed in the Court but not

affixed with the seal of the legal practitioner who settled is

ordinarily not incompetent but merely voidable. In Senator

Bello Sarkin Yaki (Rtd) & Anor V. Senator Atiku

Abubakar Bagudu & Ors (2015) LPELR-25721 (SC),

the Supreme Court held inter alia thus:

"It is my humble view that the legal document so

signed and or f i led is not null and void or

incompetent like the case of a process signed in the

name of a corporation or association (even lawyers)."

However, such a Court process would become void or

incompetent if at the end of the day or the proceedings the

seal and stamp of the legal practitioner was not still affixed.

In the instant appeal, as I write this judgment, the notice of

appeal filed by the Appellants on 2/2/2016, though attached

with receipt of payment for NBA stamp and seal of one

Folajimi Akinla Esq., had remained not affixed with the

stamp and seal of one Mirukae K. Dioru Esq., the legal

practitioner indicated thereon to have signed the notice of

appeal at page 1094 in volume III of the record of appeal.

In the circumstances therefore, the notice of appeal

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which ordinarily was not rendered incompetent by the

initial failure to be affixed with the stamp and seal of the

legal practitioner who had signed it had become

incompetent by the failure of the legal practitioner to so

affix his stamp and seal at the end of the proceeding up to

the time of the writing of this judgment. See Rule 10(1) of

the Rules of Professional Conduct for Legal Practitioners,

2007. See also Adewale & Anor V. Adeola & Ors. (2015)

LPELR -25972 (CA).

Now, a notice of appeal is the spinal cord of an appeal and

therefore, without a competent notice of appeal, which is

the foundation on which the appeal is built, an appeal its if

is incompetent and without a life of its own and thus liable

to be terminated in limine by way of it being struck out by

the Court. See Adami V. Okoli (1977) 7 SC 57. See also

Olanrewaju V. BON Ltd (1994) 8 NWLR (Pt) 364) 622;

Peter Odofin & Anor V. Chief Agu & Anor (1992) 3

NWLR (Pt. 229) 230; Odunze V. Nwosu (2007) 13

NWLR Pt. 1050) 1; Adewunmi V. Oketade (2010) 3

S C N J . 3 6 8 ; M T N V . M u n d r a V e n t u r e s

(Nig) Ltd. (2016) LPELR - 40343(CA).

The Notice of Appeal, in so far as appeals are

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concerned, is the originating process and thus must be

valid and competent to confer life on an appeal.

Consequently, once a notice of appeal is found or turns out

to be incompetent, as in the instant appeal, it is indeed the

end of the matter. In law such an appeal commenced by an

invalid notice of appeal is itself incompetent. It is incurably

bad and thus not good for anything worthwhile the precious

time of this Court to be considered on the merit. In

Okarika V Samuel (2013) 2 SCNJ 491, the Supreme

Court pronounced with finality on the issue of invalid

Notice Appeal inter alia thus:

"It is thus the law that an initiating process whether

writ of summons, originating summons or a notice of

appeal must be valid to confer jurisdiction on a Court

to adjudicate between parties on a subject matter in

dispute between them. Thus a notice of appeal not

signed by an appellant or his counsel is invalid as

there is no stamp of authority or authentication."

Again, in Shelim V Gobang (2009) Vol. 173 LRCN 36 @

p. 42, it was emphatically stated thus:

"First and foremost, a notice of appeal is the basis,

foundation and backbone of every appeal and where it

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is found to be defective or incompetent, the Court of

Appeal has the power to strike it out or to

discountenance any purported appeal for which there

is no notice of appeal."

See also Amadi V. Okoli (1977) 7 SC 57; Olarenwaju

V. BON Ltd. (1994) 3 NWLR (Pt. 364) 622; Odofin V.

Agu (1992) 3 NWLR (Pt. 229) 350; Odunze V. Nwosu

(2007) 13 NWLR (Pt. 1050) 1; Adewunmi V. Oketade

(2010) 3 SCNJ 368; Yusuf V. Toluhi (2008) 6 SCNJ 1;

Olori Motors Co. Ltd V. UBN Plc (2006) 4 SCNJ 1;

Okotie-Eboh V. Manager (2004) 5 SCNJ 131; Anyah V.

Imo Concorde Hotel (2001) 12 SCNJ 145; Nyavo V.

Zading (2016) LPELR -40803 (CA); Mela V. Ciniki

(2015) LPELR 25629(CA); Umaru V Yahaya (2015)

LPELR - 26043(CA).

This Court has the power to strike out a notice of appeal as

well as the appeal when it turns out that the notice of

appeal is not competent. This is so because, once there is

no valid notice of appeal there is really no basis in law to

proceed to consider and resolve an incompetent appeal on

the merit, since no matter how well reasoned or sound such

a judgment on the merit would be, it having been reached

in the absence of competence and lack of jurisdiction, is

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nothing but a nullity. In Macfoy V UAC Ltd. (1962) AC

152 ® p. 160; the immortal words of that erudite law lord,

Lord Denning springs forth to life thus:

"If an act is void, then it is in law a nullity. It is not

only bad, but incurably bad. There is no need for an

order of court to set it aside. It is automatically null

and void without much ado, though it is sometimes

convenient to have an order declare it to be so. And

every proceeding which is founded on it is also bad

and incurably bad. You cannot put something on

nothing and expect it to stay there. It will collapse."

In the circumstances therefore, the preliminary objection

by the Respondent challenging the competence of the

Appellants' notice of appeal is well founded and being

meritorious is hereby upheld. In the result, the notice of

appeal filed on 2/2/2016, as well this appeal, is hereby

struck out without much ado.

This ought to be the end of the matter in this appeal but as

the penultimate Court enjoined by the Apex Court to

consider all issues properly arising and submitted before it

by the parties, and in deference to the admonition to so do,

I shall proceed to consider the other

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grounds of the Respondents preliminary objection as well

as the merit of the substantive appeal, regardless of the

outcome of the preliminary objection.

On grounds 1, 7, 8 and 10 and issues one, three, four and

five being challenged as to their competence, I shall take

the liberty to reproduce these grounds of appeal without

their particulars as well as these issues as follows:

GROUND ONE: The Learned trial Court having regard to

the pleadings and the evidence brought before the Court

erred when it held that the claims of Plaintiff/Respondent

was for enforcement of copyright based on the

infringement arising from 1974 to 1997 due to the

expiration of the Tenor of the agreement made on the 6th

day of October, 1970, whereas the claim of the Plaintiff as

presented by pleadings and the Statement of Claim was not

that of infringement of copyright simpliciter and the

decision has gratuitously made a case for the plaintiff

unsupported by the pleadings and in conflict with evidence

before the Court.

GROUND SEVEN: The learned trial judge erred in law and

misdirected himself as to the burden of proof when he

stated at page 30 of the Judgment

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that: "Though DW 1 asserted that Exhibit P4 to P7 and

01-05 are pirated works, he did not explain how he knew

that they are pirated and who pirated them.

GROUND EIGHT: The learned trial judge had no

jurisdiction at all to award damages of N500, 000, 000.00

or any amount at all and a grant other reliefs against the

2nd Defendant as the basis of the Plaintiff's claim was not

proved against the defendants more especially because

there are no facts of any dealings in the musical works by

the 2nd defendant.

GROUND TEN: Judgment is against the weight of

evidence. See pages 1088 - 1093 in Vol. 11 of the records of

appeal.

ISSUE ONE: Whether having regards to the state of the

pleadings and the evidence, the Court below was correct in

its decision that the agreement between the Appellants and

the Respondent had terminated in 1975 and that from

thenceforth copyright in the musical works pleaded had

reverted to the Respondent? (Distilled from grounds 1, 2, 3,

4, & 6);

ISSUE THREE: Whether the Court below was right to

place the burden of pirated works on the Appellants?

(Distilled from ground 7);

ISSUE FOUR: Whether the Court

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below had the jurisdiction to award damages as was done

in this case or at all when there was no evidence of such

damages? (Distilled from ground 8);

ISSUE FIVE: Whether the Court below was right in

dismissing the counter - claim of the 1st Appellant?

On ground 1, the contention is that it is not only

argumentative and inconsistent with the particulars in

support thereof and thus incompetent but also that issue

one distilled from it by the Appellants does not flow with

ground 1 in that the issue of the effect of Exhibit Q,

extensively discussed by the Appellants is outside of ground

1 and thus rendered both the ground 1 and issue one

incompetent, notwithstanding the fact that issue one was

also distilled from grounds 2, 3, 4 and 6 of the grounds of

appeal.

In law a ground of appeal which is merely argumentative

and or narrative without succinctly disclosing the complaint

against the judgment appealed against is incompetent and

thus liable to be struck out. So also is a ground of appeal

whose particulars are inconsistent with the main complaint

in the ground of appeal for which they were supplied by the

Appellant. See Okpuzu V. Uzor & Ors. (2005) LPELR -

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7476 (CA);See also Federal Housing Authority V.

Kalejaiye (2010) 10 NWLR (Pt. 1226) 147.

Thus, all that is required of an appellate Court before which

the issue of competence of a ground of appeal is canvassed

is to look carefully at the ground of appeal to see if there is

an identifiable complaint therein against any of the ratio

decidendi in the judgment appealed against. In law, once

there is an identifiable complaint such a ground of appeal

would suffice and notwithstanding whether the particulars

appears or turns out to be argumentative or repetitive or

even narrative, an appellate Court would determine it on its

merit in order to render substantial justice to the parties

before it. See Awusa V. Nigerian Army (2018) 12 NWLR

(Pt 1634) 421 @ p. 448, where the Supreme Court per

Augie JSC., had opined inter alia thus:

"The law is that once the error complained of is

identified and properly oriented in the ground of

appeal, the fact that particulars to the said ground

are argumentative, repetitive or narratives is not

enough for the appellate Court to sidestep from doing

justice."

I have carefully studied ground 1 together with the

particulars

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and it does appear to me not only to be winding and

twisting in both argumentations and narratives but also in

my finding failed to disclose any identifiable succinct

compliant against any of the decisions in the judgment of

the Court below appealed against by the Appellants. It is

therefore in my finding incompetent.

Now, while the ground purports to be complaining about

the Court below making out a case of copyright for the

Respondent as against his claims by his pleading and

evidence, issue one deals with the issue of whether the

finding by the Court below that the agreement in Exhibit Q

between the parties had elapsed in 1975 and its effect on

the rights of the parties. In whatever and whichever way

this issue is looked at it is completely off tangent with

ground one and cannot by any stretch of imagination be

said to be an issue distilled from ground 1 as aptly

contended by the Respondent's counsel.

However, issue one was also said to have been distilled

from grounds 2, 3, 4 and 6 of the grounds of appeal and it

has been contended for the Appellants that issue one

having been so distilled was competent since there is no

issue of incompetent raised against grounds 2, 3,

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4 and 6 by the Appellants. The law is well settled that an

issue for determination distilled from a concoction of mixed

valid and invalid grounds of appeal is incompetent. Thus,

once it is found that ground 1 is incompetent, as I have

already earlier so found in this judgment, it follows that

issue one also distilled from the incompetent ground one is

incompetent notwithstanding that it has also been distilled

from competent grounds 2, 3, 4 and 6 of the grounds of

appeal. That being so, I hold that both ground 1 and issue

one as distilled by the Appellant are as rightly contended by

the Respondent incompetent and are hereby struck out.

See Okpuzu V. Uzor & Ors. (2005) LPELR 7476 (CA).

See also Federal Housing Authority V. Kalejaiye

(2010) 10 NWLR (Pt. 1226) 147.

On ground 7, the contention against it was that it is not a

complaint against any of the decisions in the judgment

appealed against but merely against an obiter dicta and

therefore, incompetent. In law, an obiter dicta is a

statement uttered or made in passing by a Court in its

judgment and does not amount to any ratio decidendi, and

therefore, cannot form the subject or basis of a valid

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ground of appeal. This is so because it is not every

statement made by a Court in the course of its judgment

that can be made a ground of appeal. In Gallaher Ltd. &

Anor. v. British America Tobacco (Nigeria) Ltd. & Ors.

(2014) LPELR - 24333 (CA), this Court had succinctly

stated inter alia thus:

“An opinion expressed in obiter is not appealable for

the simple reason that appeal is fought on the basis

of the decision of the Court. It is not every

pronouncement made by a Judge that can be made

subject of an appeal."

I have carefully looked at ground 7 in the light of the

statement ascribed to the Court below and it does appear

to me that there was no finding either of facts or decision

on law made thereon to warrant it being a subject of an

appeal. I agree with the apt submission of the Respondent's

counsel that the statement of the Court below referred to in

ground 7 does not amount to any ratio decidendi in the

judgment appealed against and therefore, cannot be the

basis of a valid ground of appeal. In law an appeal is fought

on the basis of the decisions reached by the Court, with

which an Appellant is aggrieved and not with every

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statements made or words uttered in the course of the

judgment but not amounting to any decision on any of the

issues as joined by the parties: Consequently, ground 7

together with issue three is hereby struck out for being

incompetent. See Gallaher Ltd. & Anor. v. British

America Tobacco (Nigeria) Ltd. & Ors. (2014) LPELR -

24333 (CA).

On ground 8, it was also contended that it was incompetent

but in whatever or whichever way ground 8, challenging

the award of damages by the Court below, is looked at in

line with issue four, it appears to me that the challenge to

its competence is misconceived. In my finding ground 8 is

competent as well as issue four distilled there from is also

competent and this is notwithstanding whether issue four

as distilled from ground 8 is likely to succeed or not on the

merit but so long as it flows from ground 8, both the

ground and the issue are competent and I so hold.

On ground 10, it was contended that no issue was distilled

from it and it was therefore, incompetent as having been

abandoned by the Appellants. On the contrary it was

contended that issues four and five were succinctly

distilled

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from ground 10 and thereby rendered it competent. I have

looked at ground 10 of the grounds of appeal from which

the issue five was distilled and I have borne in mind that

when in an appeal an Appellant employs the phrase that the

"judgment is against the weight of evidence", it postulates

that there was no evidence which if accepted would

supported the findings of the trial Court or tribunal or the

inference which he had made. It may also mean that when

the evidence adduced by the Appellant is that adduced by

the Respondent on the imaginary scale of justice, the

judgment given in favor of the Respondent would be

against the weight which should have been given, having

regard to the totality of the evidence before the Court. See

Mogaji V. Odofin (1978) 4 SC 94; UBN Ltd. V. Borini

Promo Co. Ltd. (1998) 4 NWLR (Pt. 547) 640;

Anyaoke & Ors. V. Adi & Ors. (1986) 3 NWLR (Pt.

751)1.

In law, neither an Appellant nor a Respondent is at liberty

to formulate and argue issues for determination in the air

without reference to the valid ground (s) of appeal. In other

words, for an issue to be valid. it must relate or arise or be

connected with a valid ground of appeal,

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failing which it is liable to be struck for being incompetent.

The converse is also true; for a ground to appeal to be

competent to be determined on the merit it must give rise

to a valid issue for determination, since appeal are argued

not on the grounds of appeal but on the issues for

determination arising there from. Thus, a ground of appeal

in which no valid issue is distilled is deemed abandoned

and thereby rendered incompetent and also liable to be

struck out. See Ressel L.Y. Dakolo & Ors V. Gregory

Rewane-Dakolo & Ors. (2011) LPELR - 915 (SC).

Thus, the parties to an appeal, as well as the Court, are

bound by the valid grounds of appeal in the formulation of

their issues for determination. See NIPC V. Thompson

Organization Ltd. & Ors. (1969) 1 All NLR 136 @ p.

142. See also lghedo Dieli & Ors. V. Osakwe Iwuno &

Ors. (1996) 4 NWLR (Pt. 445) 622 @ p. 633; Ibrahim

V. Nigeria Universal Bank Ltd. 2001) LPELR - 6970

(CA).

On ground 10 therefore, the question that readily arises is

whether issue five though arising partly from ground ten

but having excluded the case of the Respondent is still

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competent? I think the law is well settled to the extent that

a ground of appeal from which no issue was distilled is

deemed abandoned. So also, it is the law that an issue not

arising from any of the grounds of appeal is incompetent.

Now, what about an issue allegedly distilled midway of a

ground of appeal? In law, the result appears to be the same

that the issue as well as the ground is rendered

incompetent. In my view therefore, and I so hold, ground

10 from which no competent issue was distilled is also

incompetent and is consequently hereby struck out.

However, as earlier observed, being only but the

penultimate appellate Court in the hierarchy of Courts in

the land enjoined to consider all issues properly arising and

submitted to it for resolution by the parties, I shall,

notwithstanding my finding that the notice of appeal as well

as grounds 1, 7 and 10 are incompetent and thus liable to

be struck out, proceed to consider the merit of the

substantive appeal and I do so anon!

ISSUE ONE

Having regards to the state of the pleadings and the

issues joined therein and the evidence led thereon by

the parties, as well as the applicable laws, whether

the

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Court below was right when it held that the

Respondent had the capacity to institute the action

and proved some of his claims against the Appellants

and was thus entitled to judgment in some of his

claims against the Appellants?

APPELLANTS' COUNSEL SUBMISSIONS

On his issue one, learned counsel for the Appellants had

submitted that the depositions adopted as evidence by

Respondent as PW1 were filed more than six months

outside the 30 days granted to him by the Court below and

therefore, incompetent having been filed without the leave

of the Court below and contended that in the absence of a

valid and competent witness statement on oath there was

no evidence to support the averments in the pleadings of

the Respondent and urged the Court to hold that all the

subsequent steps taken in the proceedings were thus a

nullity and to allow the appeal and set aside the null

judgment of the Court below. Counsel relied on

Mohammed V. M. E. Co. Ltd (2010) 2 NWLR (Pt.

1179) 473 @ p. 508; Oketade V Adewunmi (2010) 8

NWLR (Pt. 1195) 63 @p. 74;

It was further submitted that on the pleadings of the

parties and the evidence led thereon there was no basis

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for the erroneous conclusion by the Court below that the

right to exclusive copyright granted to the 1st Appellant in

the agreement of 6/10/1970 as in Exhibit Q had been

terminated in five years or that the erroneous conclusion

flowed from the judgment in Suit No. LD/1300/74: African

Songs V. Sunday Adeniyi & Ors as, in Exhibit R and

contended that in law both the parties as well as the Court

are bound by the terms of the agreement voluntarily

entered into by the parties. Counsel relied on Babatunde

V. BON Ltd (2011) 18 NWLR (Pt. 1279) 738 @ p. 777;

A.G. Rivers State V. AG. Akwa Ibom (2011) 8 NWLR

(Pt. 1248) 31 @ pp. 83 - 84; Idufueko V. Pfizer

Products Ltd (2014) 12 NWLR (Pt. 1420) 96; Best

Nig. Ltd V. B.H. Nig. Ltd. (2011) 5 NWLR (Pt. 1239)

95 @ pp. 116 -117; Fagbuara V. Akinbami (2015) 6

NWLR (Pt. 1455) 358 ®p. 373; Ihunwo V. Ihunwo

(2013) 8 NWLR (Pt. 1357) 550 @p. 583.

It was also submitted that the Court below after initially

situating the correct perspective of the issue relating to the

agreement between the parties later fell into error when it

misplaced the tenor of the contract with the right accruing

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there from the contract and contended that the tenor of the

contract commenced on 6/10/1970 and enjoined the parties

to operate on the basis of the agreement till midnight of

5/10/1975 and urged the Court to hold that the decision by

the Court below relying on Exhibit R the earlier judgment

that upon expiration of Exhibit Q on 5/10/1975 the copy

right in the musical works reverted to the Respondent and

the right of the 1st Appellant terminated was erroneous on

the face of Clause 4(b) of Exhibit Q since the issue of

copyright was not in issue between the parties and was also

not supported by law. Counsel referred to Intellectual

Property Law by Dr. C. S. Roy @ p. 104; Section 11(1)

- (7) of the' Copy Right Act.

It was also further submitted that on the averments and

evidence led by the Respondent at the trial it was clear and

the Court below ought to have so held that there was no

case of an infringement of copyright and that the action by

the Respondent did not disclose any cause of action as it

rather constituted an abuse of process as aptly raised by

the Appellants but were overruled by the Court below and

contended that the Court below fell into error by

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misinterpreting, misrepresenting and making a case which

did not exist for the Respondent and urged the Court to

hold that the Court below was wrong when it held that the

ownership of copyright in the works the Respondent and

his group made in the course of his employment for that

purpose came to an end on 5/10/1975 and reverted to the

Respondent from then on and to allow the appeal and set

aside such erroneous findings.

On his issue two, learned counsel for the Appellants had

submitted that by the averments in paragraphs 10 and 11

in the 3rd Amended statement of claim, with which the

Respondent was bound, the action instituted by the

Respondent was one of representative action for Sunny Ade

and Members of Green Spot Band and not by the named

Respondent only and contended that contrary to the

representative nature of the action and the terms of Exhibit

Q and the judgment in Exhibit R, the Respondent by his

evidence appropriated to himself only the ownership of the

copyright in the works and urged the Court to hold that the

case of the Respondent was not made out going by the

purely self - serving false testimonies, unpardonable

deceit,

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misrepresentation and the ambivalence of the Respondent

and to allow the appeal and set aside the judgment of the

Court below reached outside the averments of the

Respondent. Counsel referred to Section 11(3) of the Copy

Right Act and relied on Salisu V. Odimegwu (2010)6

NWLR (Pt. 1190) 228 @p. 241; Saka V. Ijub (2010)4

NWLR (Pt. 1184)405 @ p. 425; Ogboru V. Okowa

(2016) 11 NWLR (Pt. 1522) 84 @p, 150; American

Cyanamid Company V. Vitality Pharmaceuticals Ltd.

(1991) 2 NWLR (Pt.,171) 15; Osho V. Foreign Finance

Corporation & Anor. (1991) 4 NWLR (Pt. 184) 157;

Okafor V. Abumofuani (2016) 12 NWLR (Pt. 1525)

117 @pp. 145 - 146.

On his issue three, learned counsel for the Appellants had

submitted that the finding by the Court below that the right

of the 1st Appellant to produce and reproduce the musical

works of the Respondent and his group recorded under the

contract in Exhibit Q had expired was perverse and

contended that the allegation by the Respondent that the

1st Appellant reproduced the musical works after having

been so restrained in Exhibit R amounts to a criminal

allegation which must be proved beyond reasonable doubt

by the

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Respondent and urged the Court to hold that the Court

below was in grave error when it had without any evidence

proceeded on the assumption that since the 1st Appellant

was contending that his right under the contract in Exhibit

Q was subsisting then it must have printed and produced

Exhibits P4 - P7 and 01 — 05 and that the evidence that

these Exhibits were pirated copies could not have been true

and to set aside such perverse findings and allow the

appeal.

On his issue four, learned counsel for the Appellants had

submitted that the power of the Court to award damages is

constitutional under Section 6 of the Constitution of

Nigeria 1999 (as amended) but contended that in law

where a claim is made and there is no evidence at all to

support it, the Court losses the power to make an award of

damages and urged the Court to hold that on the lack of

evidence from the Respondent as to damages the Court

below was in grave error when it misinterpreted Exhibits Q

and R in arriving at and awarding damages against the

Appellants in favour of the Respondent, contrary to the law

on award of damages, since no such damages was proved

by the Respondent as required of him by law and to allow

the appeal

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and set aside the damages erroneously awarded in favor of

the Respondent against the Appellants by the Court below.

RESPONDENT'S COUNSEL SUBMISSIONS

On his issues one and four, learned counsel for the

Respondent had submitted that on the averments of the

Respondent the major complaint against the Appellants was

that they had persistently infringed the copyright of the

Respondent in some musical works, notwithstanding that

the agreement between the 1st Appellant and the

Respondent in respect of the said musical works had come

to an end and contended that the Respondent led copious

evidence in line with his averments through three written

statement on oath, which were duly adopted without any

objection having been waived but now being raised for the

first time without any relevance to issue one and without

any leave of the Court to so do, and urged the Court to hold

that the judgment of the Court below was valid and not a

nullity as mischievously and erroneously contended by the

Appellants without any basis in law. Counsel relied on

Saude V. Abdullahi (1989) LPELR - 3017 (SC);

Professor Buba Garegy Bajoga v. The Government of

the

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Federal Republic of Nigeria & Ors (2007) LPELR -

8924 (CA); Momoh V. Adedoyin (2018) 12 NWLR (Pt.

1633) 345 @ p. 367.

It was further submitted that from all the averments in the

pleadings of the Respondent and the evidence led thereon

it was crystal clear that the copyright in respect of the

musical works earlier assigned to the 1st Appellant by the

Respondent was in issue since in law it is the claim of the

Claimant that determines the jurisdiction of the Court and

contended that on the face of the pleadings and evidence of

the Respondent fought in a representative capacity for

himself as the owner of the musical works and those he

duly represented, it was gravely erroneous for the

Appellants to contend in this appeal that the Court below

made out a case of copy right for the Respondent when

indeed that was the main thrust of the claim of the

Respondent and those he represented in the case and

urged the Court to affirm the correct findings of the Court

below and dismiss the appeal for lacking in merit. Counsel

referred to Sections 2(1) and 5(1) of the Copy Right Act;

Order 9 Rules 1 and 14.(1) of the Federal High Court (Civil

Procedure) Rules, 2009,

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and relied on Igwe & Ors V. Ezeanochie & Ors. (2009)

LPELR - 11885 (CA).

On his issues two, three and five, learned counsel for the

Respondent had submitted that the Court below rightly

focused the issue in contention between the parties as

revolving around the interpretation of the agreement dated

6/10/1970 as in Exhibit Q and the Judgment dated

14/2/1975 in Suit No. LD/1300/74: African Songs Ltd. V.

Sunday Adeniyi & Ors as in Exhibit R and contended that

case as pleaded and proved by the Respondent was that the

assignment of the copyright in the musical works in issue to

the 1st Appellant vide Exhibit Q was for 5 years but that

upon the expiration of the tenor of Exhibit Q, the 1st

Appellant, in conjunction with the 2nd Appellant and other

persons, continued with the production and distribution of

the musical works without the consent and authorization of

the Respondent and urged the Court to hold that the Court

below did carry out a painstaking and proper evaluation of

the evidence led by the parties to correctly interpret the

purport and effect of Exhibit Q and R and came to the right

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finding that Exhibit Q when considered holistically, as

required of Courts by law, the only reasonable conclusion is

that the Respondent merely assigned the copyright in the

musical works in issue to the 1st Appellant for the 5 year

period of that agreement. Counsel relied on BFI Group

Corp. V. BPE (2012) 18 NWLR (Pt. 1332) 209; Larmie

V. D.P.M.S Ltd. (2005) 18 NWLR (Pt. 958) 438;

Amuneke V. State (1992) NWLR (Pt. 217) 347; Sule O.

Asariyu V. The State (1987) 4 NWLR (Pt. 67) 1.

It was further submitted that on the strength of the

evidence of PW1 and DW1, who admitted he could not even

remember when last he paid royalty to the Respondent for

the use of his musical works, the Court below was right

when it held that upon the reversion of the copyright in the

musical works to the Respondent, the Appellants were

bound to refrain from further reproduction, sale or

otherwise dealing with the said musical works without the

authorization or consent of the Respondent and contended

that there were unchallenged evidence that despite the

expiration of the five years as granted in Exhibit Q the

Appellants continued with the reproduction and sale of the

relevant musical works after

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the copyright in those musical works had reverted to the

Respondent and also notwithstanding the interim and

interlocutory orders made by the Court below restraining

the Appellants from further infringement on the

Respondent's copyright in those musical works and urged

the Court to affirm these correct findings and to dismiss

the appeal for lacking in merit. Counsel relied on, JFS

Investment V. Brawal Line Ltd. (2010) 18 NWLR (Pt.

1125) 495; Union Bank of Nigeria Lid. V. Prof Ozigi

(1994) 3 SCNJ 42.

It was also submitted that an holistic consideration of the

averments of the Respondent in his pleading clearly reveal,

and as rightly found by this Court below, that the case of

the Respondent as made out was that although there was

an initial agreement between the 1st Appellant and the

Respondent in respect of the musical works in issue, the

Appellants continued the reproduction of the said musical

works even after the initial agreement had expired and

contended that in the entire pleadings of the parties there

is no averment that the Respondent and/or King Sunny Ade

was ever in the employment of the Appellants and urged

the Court to hold that the copyright in the musical

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works having now become vested in the Respondent, more

particularly, King Sunny Ade, who is the author, composer

and actual owner of those musical works, the Appellants

were obligated to return the musical works to the

Respondent since at best the contract between the

Respondent and the 1st Appellant at the relevant time was

merely one of contract for service and not a contract of

service or a contract of agreement since by Exhibit Q, the

Respondent was entitled to the payment of royalties and

not wages or salaries as an employee of the 1st Appellant.

Counsel relied on Shena Security Co. Ltd v. Afropak

(Nig) Ltd (2008) 34 NSCQR (P1.1 1)1287.

On his issue six, learned counsel for the Respondent had

submitted that the Court below was right when in

determining the extent of liability of the Appellants to the

Respondent. It took into cognizance the fact that the

Appellants actively indulged in the infringement of the

Respondent's copyright in the musical works in issue on the

face of Exhibits P4 - P7, 01 - 05, which were compact discs

containing the Respondent's musical works made after the

orders of interim and interlocutory injunctions by the

Court

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below and contended that when confronted with the

aforesaid Exhibits in the course of his cross-examination,

DW1 asserted that the said exhibits were not produced by

the 1st Appel lant but must have been pirated

notwithstanding the fact that the name/insignia/trademark

of the Appellants, was shown on the said Exhibits and

urged the Court to hold that the statement by the Court

below while reviewing the evidence of the parties that

DW1 ought to have explained how he knew that those

Exhibits were pirated did not amount to shifting any burden

of proof unto the Appellants; who in law carried the proof

of allegations made by them, as erroneously alleged but

was not made out by the Appellants. Counsel relied on UBA

Plc. V. Chief C. E. Ubokulo & Ors. (2009) LPELR -8923

(CA); Biezan Exclusive Guest House Ltd. & Ors. V.

Union Homes Savings & Loans Ltd. (2010) LPELR -

3876 (CA).

On his issue seven, learned counsel for the Respondent had

submitted that from the evaluation of the evidence led by

the parties on their pleadings it was clear and the Court

below was right in entering judgment in favour of the

Respondent

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against the Appellants, jointly and severally, having taken

into consideration the fact that the present Appellants,

which are affiliated companies, were actually the

"architects" of the infringement of the copyright of the

Respondent's musical works and contended that a holistic

view of the Respondent's' pleadings reveals that apart from

the averments relating to the 1st Appellant's conduct as to

the infringement of the Respondent's copyright, specific

averments were also made by the Respondent in respect of

the 2nd Appellant showing the particular acts of the

2nd Appellant which gave rise to the Respondent's cause of

action against the 2nd Appellant and urged the Court to

hold that in law in determining whether or not a Claimant

has a reasonable cause of action against a Defendant, an

issue never raised before the Court below, the Court is not

expected to scrutinize or examine the statement of Defense,

exhibits or other materials furnished by the defense but

limited to examining the statement of claim of the Claimant

and to dismiss the appeal for lacking in merit. Counsel

relied on First Inland Bank Plc. V. Consolex Legal

Practitioners & Ors. (2013) LPELR - 20194 (CA);

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Madukolu v. Nkemdilim (1962) 1 All NLR 589.

APPELLANTS' COUNSEL REPLY SUBMISSIONS

In his reply, learned counsel for the Appellants reiterated

his earlier submissions on the incompetence of the written

statements of oath of the PW1 by reason of the failure to

comply with the time granted by the Court to file them and

contended that such an issue touching on the jurisdiction of

the Court cannot be waived and can be raised at any stage

of the proceedings even for the first time on appeal and

urged the Court to hold that the written statements on oath

of the PWI remained incompetent and the Respondent

cannot in law be allowed to benefit from his own wrong and

to allow the appeal and set aside the judgment entered in

favor of the Respondent on his incompetent witness

statements on oath. Counsel relied on Madukolu V.

Nkemdilim (1962) 1 All NLR 589; Maertsch V. Bisiwa

(2014) 10 NWLR (Pt. 1416) 479; Minister of Lands V.

Dr. Nnamdi Azikwe (1969) 1 All NLR 49; Akere V.

Governor, Oyo state (2012) 12 NWLR (Pt. 1314) 240

It was further submitted there is an obvious confusion as to

the tenor of the agreement as against the accrued right

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which inures in perpetuity or as prescribed by law in that

the simple interpretation of the mutual relationship of the

parties are that the Respondent will work for the 1st

Appellant for 5 years and the parties might later extend it

by another term but the meantime whatever work the

Respondent did for the 1st Appellant, all the copy rights

will vest in the 1st Appellant, who will only be paying the

Respondent royalties from the 1st Appellant's income from

trading with copy right works and contended that the tenor

of Exhibit Q will end but the benefits not only continues but

remains in perpetuity by law or by agreement and urged

the Court to so hold and to set aside the perverse finding to

the contrary by the Court below and to allow the appeal.

It was also submitted that on the evidence led there was no

iota of evidence before the Court below that the 1st

Appellants reproduced and redistributed any musical works

of the Respondent after the order of injunction of the Court

below and contended that there were indeed no averments

by the Respondent that the 2nd Appellant did anything with

respect to the musical work of the Respondent and urged

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the Court to hold that the Managing Director of the 2nd

Appellant had at no time admitted to the continuous

infringement of the copyright of the Respondents and to

allow the appeal.

RESOLUTION OF ISSUE ONE

My lords, issue one is a potpourri or conglomeration of the

several issues raised by the parties in their respective

briefs dealing with the representative capacity of the

Respondents, the competence of his written statements on

oath, the interpretation of the terms and tenor of Exhibit Q,

the legal effect of Exhibit R, the burden of proof of

infringement of copy right and pirating of the works of the

Respondent, the evaluation of the evidence led by the

parties, the finding of the Court in favour of the

Respondent against the Appellants and the award of

damages against the Appellants.

In law when an Appellant alleges that a trial Court had not

properly evaluated the evidence led by the parties it is

simply a call on the appellate Court to consider first

whether or not the trial Court had properly evaluated the

evidence led before it and if it finds that the trial Court had

not, then to proceed to and re - evaluate the evidence in the

printed record to

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determine if the trial Court had made correct findings

borne out by the evidence as led by the parties. It is the law

that it is only where the trial Court had not properly carried

out its sacred duty of dispassionately evaluating the totality

of the evidence led and had thus failed in this primary duty

that an appellate Court would have the legal justification to

intervene and re - evaluate the evidence on the printed

record in order to make appropriate findings of facts in line

with the evidence led and in the dictates of justice to the

parties. So, until an appellate Court arrives at such a

conclusion the need for re - evaluation of evidence does not

arise since an appellate Court has no business interfering

with correct findings of a trial Court. See Williams V.

Tinubu (2014) All FWLR (pt.755)200. See also

Amuneke V. The State (1992) NWLR (Pt. 217)347;

Sule Asariyu V. The State (1987) 4 NWLR (Pt. 67)

709; Nkebisi V. State (2010) 5 (Pt. 1188) 471;

Woluchem V. Gudi (1981) 5 SC. 291; Enang V. Adu

(1981) 12 SC. 25; Abisi & ors. V. Ekwealor & Anor

(1993) 6 NWLR (Pt. 302) 643; Igago V. The State

(1999) 12 SCNJ 140 160; Amala V. State (2004) 12

NWLR (Pt. 888)520.

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However, in carrying out its re - evaluation, even where it

finds that the trial Court had failed to carry out its primary

duty to do so properly, it must still be borne in mind by the

appellate Court that evaluation and ascription of probative

value to the evidence led is ordinarily the turf of the trial

Court, and thus once a trial Court discharges that duty on

the strength of the evidence placed before it, unless it

arrives at perverse conclusions or findings not supported

by the established evidence before it, an appellate Court

will not interfere if the conclusions reached is correct, even

if the reason which is the pathway to the conclusion or

finding turns out to be wrong. This is so because in law an

appellate 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; that is the law. See Alhaji

Ndayako & Ors. V. Alhaji Dantoro & Ors. (2004) 13

NWLR (P4 8139) 187 g p. 198. See also Abaye V. Ofili

(1986) 1 NWLR (134 15) 134; Ukejianya V. Uchendu

18 WACA 46.

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It is thus the law that an appellate Court which had not

seen the witnesses testify and observed their demeanor in

the witness stand should respect the views of the trial

Court and not to readily substitute its own views for that of

the trial Court except where it is shown that the conclusion

or finding reached by the trial Court was perverse and for

this an appellate Court will readily intervene to re-evaluate

the evidence in the printed record if it is shown that the

conclusions reached or findings made by the trial Court on

the proved evidence before it do not flow from such proved

facts or runs contrary to such proved facts and thus

perverse. In such a case, the appellate Court is in good a

position as the trial Court to intervene to re-evaluate the

evidence in the printed record to draw necessary inference

and make proper findings on the proved and admitted facts

in the record as the justice of the case requires but which

the trial Court had failed to do. See Obajimi V. Adeobi

(2008) 3 NWLR (Pt. 1075) 1 ® p. 19. See also Owor V.

Christopher (2010) All FWLR (Pt. 511) 962 p. 992;

Sogbamu V. Odunaiya (2013) All FWLR (Pt. 700) 1249

@

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p. 1302; Mini Lodge V. Ngei (2010) All FWLR (Pt.

506) 1806 @ pp. 1820 -1821; Sa'eed V. Yakowa (2013)

All FWLR (Pt 692) 1650 @ p, 1681.

In considering the conclusions and findings reached by the

trial Court, I am aware that it is the prerogative of a trial

Court which sees and hears the witnesses to choose which

to believe and to ascribe probative value to such evidence,

either oral or documentary. Thus, a trial Court being the

master of the facts, must base his inferences, evaluation or

assessment and findings on the available evidence adduced

before it and therefore, if its findings must stand it must

not be premised on extraneous facts or matters or

conjectures outside the evidence given at the trial. See

Emeka V. The State (2014) LPELR 23020 (SC); Afolalu

V. The State (2010) 16 NWLR (Pt. 1220) 584; Ejeka V.

The State (2003) 7 NWLR (Pt. 819) 408; Isibor V. The

State (2002) 4 NWLR (pt. 758) 241; Iko V. The State

(2001) 14 NWLR (Pt. 732) 221; Baba V. The State

(1994) 7 NWLR (Pt. 355) 195; The State V. Musa

Danjuma (1997) 3216 (SC) 1; Arehia V. The State

(1982) NSCC 85.

My lords, having averted my mind to the basic principles of

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law on evaluation of evidence and findings by a trial Court

and the duty of an appellate Court called upon to consider

whether or not proper evaluation and correct findings have

been reached by the trial Court to determine whether or

not to intervene to re-evaluate the evidence on the printed

record and make proper findings, what then are the pieces

of evidence as led by the parties before the Court below?

In proof of his claim and defense to the 1st Appellant's

counter claim, the Respondent testified as PW1 and

tendered several documents admitted in evidence as

Exhibits A-N, 01 - 06, P1 - P15, Q and R and closed his case.

He adopted his written and further written Statements on

Oath and tendered in evidence copies of his musical works

contained in the master tapes handed over to the 1st

Appellant pursuant to the agreement dated 6/10/1970 as in

Exhibit Q while an earlier judgment in Suit No. LD/1300/74:

African Songs Ltd. V. Sunday Adeniyi & Ors delivered on

14/2/1975 was tendered as Exhibit R. He was thoroughly

cross examined. See pages 216 - 223, 520 - 529, 531 -533,

535 -540, 544 — 545, 741 — 745 and 747 - 761 of the

record of appeal.

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In defense to the claims of the Appellant and in proof of its

counter claim, the 1st Appellant as well as the 2nd

Appellant called one witnessed who testified as DW1,

Abubakar Armin Oladosu Abioro. He adopted his written

statements on oath and tendered some documents admitted

in evidence as Exhibits S, T, U, V and W. He was

thoroughly cross examined. See pages 765 - 761, 763 - 766,

770 - 772B and 775 - 777 of the record of appeal. The 5th

Defendant before the Court below also called one witness

who testified as DW2, Bankole Oduayo Ojo. He adopted his

written statement on oath and was duly cross examined.

See pages 607 - 608 and 532 - 636 of the record of appeal.

It was on the strength of the above pieces of evidence, both

oral and documentary, that the Court below had in its

judgment delivered, on 12/11/2015 granted some of the

claims of the Respondent against the Appellants. Now, by

reason of the complaints in this appeal by the Appellants

that Court below did not properly evaluate the evidence,

both oral and documentary, as led in evidence by the

parties before it, I shall seek my lords understanding to

take the liberty to reproduce hereunder in extenso,

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relevant parts of the judgment of the Court below inter alia

thus:

"...There is no denial that the dispute between the

parties in this suit especially as between the Plaintiff

and the 1s t Defendant i s entered on the

interpretation of the agreement Dated 6/10/1970

(Exhibit Q) and the Judgment of Mr. Justice L.J.

Dosunmu in Suit No. LD/1300174 dated 14/2/1975

(Exhibit R) and the effect these documents on the

claims of the parties. One fundamental nature of

agreement (Exh. Q) is that irrespective was for a term

of five years... the pronouncement of Mr. Justice

Dosunmu in Exhibit 'R' as to the agreement is very

instructive—It is noteworthy that the parties too have

acknowledged the f i ve year tenor o f the

agreement...When read alone, the clause invariably

conveys an impression of the plaintiff having

absolutely assigned copyright in his musical works for

eternity. But such interpretation will mean clause 6

was served and outlived the expressly stated five year

tenor of Exhibit Q, which will certainly be absurd. The

more reasonable interpretation in whole context of

Exhibit Q is that the Plaintiff by virtue of Clause 6

signed full

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copyright in his musical works to the 1st Defendant

but directly for the five year period of that agreement.

The wording of Clause 4 (a) and 10 in Exhibit Q

actually allude to this leaning...I uphold the

submission of learned counsel for the plaintiff that

upon expiry of the agreement on 5 October, 1975, the

rights enuring to the 1st Defendant in the musical

works ended copyright automatically reverted to the

Plaintiff. Thus, the 1st Defendant and indeed all the

Defendants were bound to refrain the further

reproduction, sale or otherwise dealing with the

musical works as doing so amounted to a breach of

the terms of the agreement Exhibit Q and also giving

rise to infringement of the Plaintiff's copyright in

those works. This is particularly in the light of

evidence that the agreement was not renewed from

1975...I hold that he is entitled to institute this action

in his name and claim reliefs for himself the

infringement of copyright... Having regard to the

entire evidence adduced in relation, to case, I am

satisfied that there is preponderance of evidence that

the 1st and 2nd Defendants actively indulged

infringement of the Plaintiffs copyright in his musical

works. In the

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absence of any other evidence, it is sufficient that

DW1 admitted that his two companies, being the 1st

and 2nd Defendants continued producing the

Plaintiff's musical works without his permission up to

March 1997 when their agreement had terminated in

1975...The same goes for evidence that all disputed

works were produced on master tapes which are till

date, the custody of the 1st Defendant, despite the

Plaintiff's repeated demand for same... For the 1st

and 2nd Defendants, the Plaintiff is entitled to

damages against them for sustained infringement of

his musical works for a very long time..." See pages

1021 - 1062 in Vol. III of the records of appeal.

To resolve this potpourri of issue one, four pertinent and

two peripheral questions readily come up to be

answered. The four pertinent questions are namely, a:

whether the agreement between the parties as evidence by

Exhibit Q was for five years and thus came to an end in

1975 and the copyright in the musical works of the

Respondent reverted to the Respondent? b: whether the

Appellants had, despite the expiration of the five years as

granted to the 1st Appellant by the Respondent in Exhibit Q

and the orders of injunction

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by the Court below against them, persisted in and

continued the reproduction and distribution of the musical

works of the Respondents and thereby infringed on his

copy right to those musical works? c: whether Exhibits 01 -

06 and P1- P7 were evidence of either infringement or

pirating of the musical works of the Respondent and by

whom? and d; whether the Respondent made out his claim

for damages against the Appellants? .

The two peripheral, but no less, important questions are

namely, a: whether the case of the Respondent was

unsupported by evidence by reason of incompetence of the

written and further written statements on oath adopted by

the Respondent as PW? b: whether the Respondent made

out the representative capacity in which the claim was

commenced, against the Appellants? I shall commence my

consideration of these questions with the two peripheral

questions.

I have taken time to go through the printed record as to the

filing and adoption of, the written and further written

statements on oath of the PW1 and considered the

submissions of counsel for the parties and it does appear to

me at once that the PW1, contrary to the vehement'

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contention of the Appellants, made and adopted three

written statement on oath as his evidence in chief and not

merely the two written statements on oath being contested

by the Appellants.

I am aware that in law where an issue touches on

jurisdiction it can be raised at any stage of the proceedings

and even for the first time on appeal, yet an issue of

jurisdiction cannot be raised in the air but must relate to a

valid ground of appeal if being raised for the first time on

appeal. In other words, an Appellant cannot in the absence

of any valid ground of appeal touching on jurisdiction

merely raise an issue of jurisdiction and canvass arguments

thereon merely in his brief.

It is also the law that where the irregularity complained of

by a party is a mere irregularity, not one going to the root

of the claim of the other party, then such an irregularity

can be waived by the party who failed to promptly raise an

objection to it and proceeds to take fresh or further steps in

the proceedings. Thus, in law it is only fundamental

irregularity touching on jurisdiction that cannot be waived.

See Saude V Abdullahi (1989) LPELR - 3017 (SC);

Professor Baba Garegy Bajoga V.

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The Government of the Federal Republic of Nigeria &

Ors (2007) LPELR - 8924 (CA).

In Momoh V. Adedoyin (2018) 12 NWLR (Pt 1633)

345® p. 367 this Court had per Ogbuinya JCA,, stated

inter alia thus:

"It is trite that a party should register an objection to

the violation of the rules of Court timeously at the

commencement of the action or when the irregularity

is noticed. If a party dithers/delays in his protestation

against non-observation of the rules of Court, and

proceeds to take a step in the matter, the law deems

him as having acquiesced in the irregularity and his

objection taken as belated. Such an indolent party

will in the sight of the law, be caught in the

intractable vortex of waiver..."

See also Prince Oyesule Alabi Ogundare & Anon

V. Shittu Ladokun Ogunlowo & 3 Ors. (1997) 5 SCNJ

281; Edebiri v. Edebiri (1997) 4 NWLR (Pt. 4980) 165

@ p. 174;. International Messengers Nig. Ltd. V.

Pegofor Industries Ltd. (2005) 15 NWLR (Pt.947) 1 @

p. 19; Ezomo V. AG. Bendel State (1986) 4 NWLR Pt.

36) 448; Kayode V. Odutola (2001) 11 NWLR (Pt. 725)

659.

Having considered the entirety of the facts relating to

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and the submissions on the written statements on oath of

the PW1, I find that the contentions of the Appellants that

the case of the Respondent was not supported by any

admissible evidence by reason of the alleged incompetence

of the two written statements on oath of the Respondent

adopted as his evidence in chief as PW1 is misconceived

and lacking in merit and ought to be discountenanced. The

Respondent had an additional written statement on oath

unaffected by the challenge of the Appellants which on its

own stood as evidence in support of the case of the

Respondent. The Appellants who were aware of the alleged

irregularities, which is mere irregularity, did not raise any

objection to their being adopted as evidence by the PW1

but rather proceeded to cross examine the PW1 on them

and thereby waived their right to complain. Most

importantly in none of the ten grounds of appeal, both the

valid and invalid grounds, did the Appellant complain about

the incompetence of the written statements on oath of the

PW1, which was merely smuggled into the brief of

argument. In the circumstances, therefore, the contention

that the Respondent's case was not supported by any

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competent evidence is hereby discountenanced for being

erroneous, mischievous and lacking in merit.

The second peripheral issue is whether the Respondent

made out the representative capacity in which he

commenced the action against the Appellant or merely

prosecuted the action for himself contrary to the pleadings.

I have taken time to consider the submissions of counsel

and studied the averments of the Respondent in the 3rd

amended statement of claim and the evidence led thereon

and it appears to me that this ground of contention is both

illogical and irrelevant bearing no correlation to the lucid

pleadings of the Respondent as to the capacity in which the

action was commenced and the unchallenged evidence led

thereon and in the absence of any complain by any or all of

those represented by the Respondent. In law once a suit

discloses either by the pleading or in the evidence the

representative capacity in which it was prosecuted then not

even the failure to obtain leave to do so if required would

defeat such a representative action. Thus, the Appellants,

who on this issue are mere busy bodies, are in law bereft of

any right to

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contest or challenge the representative capacity of the

Respondent, they not being part of the persons represented

by the Respondent: This question is therefore resolved

against the Appellants and I hold that the Respondent

validly commenced and prosecuted this action against the

Appellants for himself and as representative of members of

Green Spot Band.

Having resolved both peripheral questions in favour of the

Respondent against the Appellants let me now proceed to

consider and resolve the four pertinent questions ad

seriatim, commencing with the first question, namely:

whether the agreement between the parties as evidence by

Exhibit Q was for five years and thus came to an end in

1975 and the copy right in the musical works of the

Respondent reverted to the Respondent?

Now, it was of common ground to both parties, with which

the Court below also agreed, that the crux of the claim of

the Respondent revolved around the tenor, purport and

effect of Exhibit Q, the agreement between the parties by

which the Respondent assigned his rights in his musical

works and that of his group over to the 1st Appellant. The

only contentious issue from the issues as joined in the

pleadings

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of the parties and on which the matter went to trial before

the Court below was whether the tenor of Exhibit Q was

still subsisting and whether the rights assigned over to the

1st Appellant by the Respondent exists in perpetuity or was

for only five years from the date of execution of Exhibit Q.

While the Respondent had claimed that the tenor of Exhibit

Q was for five years only from 1970 and had thus elapsed,

the Appellants asserted that the right vested by Exhibit Q is

in perpetuity. The Court below accepted the claims of the

Respondent and held that the right vested by Exhibit Q was

for a period of five years on a holistic interpretation of

Exhibit Q. This is really the main crux of this appeal.

My lords, when I commenced the preparation of this

judgment, it did appeared to me from the onset that this

issue would not be an easy nut to crack and would thus

pose some great difficulty to resolve until I reviewed the

totality of the evidence led in line with the pleadings of the

parties as in the printed as it became readily apparent to

me that there was a convergence in the evidence on this

issue as between the parties and thus paving the way for a

rather

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smooth resolution of this issue devoid of the initial difficulty

I had envisaged. This is the beauty of the law when it

brings to bear its succinct principles on evidence led by

parties in any given case. The Respondent led copious and

credible evidence of the agreement between the parties

and tendered Exhibits Q and R in support of his oral

evidence and he was not in the least shaken in any material

particular on his extensive cross examination by the

Appellants and the 5th Defendant.

Now, here is a party, the 1st Appellant who had vehemently

contended in its pleadings that both the tenor and rights

vested in it by the Respondent by virtue of the terms of

Exhibit Q was in perpetuity and not, for a meager five years

as the Respondent had vociferously claimed and led very

copious credible evidence in support thereof; but when its

only witness DW1 was taken up in cross examination, he

capitulated and testified inter alia thus:

"At the time I took over the companies, I met the

producing of the Plaintiff's work and they continued

thereafter. By producing of the Plaintiff's works, I

mean duplicating and distributing the works. The

Plaintiff

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stopped performing for the 1st Defendant by 1974.

There was a five-year contract between the Plaintiff

and the 1st Defendant at the time the Plaintiff was

performing. The contract was signed in 1970." See

page 765 of the records of appeal.’’

It has become imperative since the introduction of written

statement of oath as evidence in chief in civil proceedings

that cross examination is now the real test of the veracity of

witnesses. The reason being that most written statement of

oath nowadays are mere replica of the pleadings of the

parties. It is thus by the cross-examination evidence the

true worth of the evidence of a witness is ascertained. So

it was with the DW1 who under the intense heat of cross

examination virtually admitted the crux of the case of the

Respondent that Exhibit Q was for a five-year period and

that long after the expiration of the five-year period the

Appellants were still reproducing and distributing the

musical works of the Respondent. DW1 was even so candid

when he admitted that he cannot remember when last any

form of royalty was last paid to the Respondent for the use

of his musical works by the 1st Appellant.

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The law is well settled that evidence elicited in cross

examination, as in the instant appeal from the DW1 by the

Respondent, which supports the case as pleaded by the

cross-examining party is good evidence on which a trial

Court, such as the Court below can legitimately act to make

appropriate findings of facts. See Daggash v. Bulama

(2004) 14 NWLR (Pt. 892) 144

Now, while by Clause 2(b) of Exhibit Q it was agreed by the

parties thereto that 'The Artist will during a period of Five

years commencing from the date first above mentioned

attend at such places and times as the company shall

require and elect for reproduction in any record' by Clause

4(a) it was further agreed 'The Artist shall not during the

currency of this Agreement and any extension thereof

render any performance whatsoever, to himself, and

company, or group of persons.' And while in Clause 6, the

parties agreed that 'in consideration of the fees and

royalties payable by the Company under Clause 5(a) of this

Agreement the Artist agree (sic) that they will assign to the

Company the full copyright in the music and lyrics of any

works the Artist records for the Company where such

works are the original

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compositions of the Artist. In instances where the copyright

of a particular work does not belong to the Artist, the

Company shall be entitled to reserve from Royalty payable

under Clause 5 (a) such amount as may be necessary to

cover copyright fees or royalties which may be payable to

the copyright owner' by Clause 10 the parties agreed that

'the Company shall be entitled to renew this Agreement for

a further term of two years or any other longer period, on

giving notice in writing to the Artist before the expiration of

the Agreement.

Crucially and interestingly the same Exhibit Q had earlier

been the subject of litigation between the parties before the

High Court of Lagos State, wherein Dosumnu J., had in

Exhibit R, the judgment of the Court, pronounced on

Exhibit Q inter alia thus:

"I have already set down the details of this agreement

and I agree with Counsel that some of the terms are

stringent. But this is not a ground for holding the

contract invalid as the terms are all concerned with

what is to happen whilst the Defendants are employed

by the plaintiff and not, thereafter there is no

question of restraint of trade...The contract of service

in

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question is for an initial period of five years

commencing from 6/10/1970. But under Clause 10 of

the agreement, it is provided that the Defendants

shall be entitled to renew it for a further term of two

years, or any longer period on giving notice in writing

to the defendants before the expiration of the

agreement... I further make an order restraining the

first defendant from rendering any performances.

That is, signing and/or playing on an instrument

along or with others for the purpose of pressing into

records any such songs or plays either to himself, and

company or group of persons, until the expiration of

the said agreement on the 5th of October, 1975" See

pages 16, 19 - 20 of Exhibit R.

It was on the face of the above pieces of oral and

documentary evidence that the Court below had found as

fact that Exhibit Q was for an initial tenor of five years and

in the absence of any evidence of further renewal between

the parties had lapsed upon the expiration of five years and

the copy right in the musical works of the Respondent

reverted to the Respondent. Having myself calmly reviewed

the entirety of the pleadings and the evidence led by the

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parties, particularly the terms of Exhibit Q and the

judgment in Exhibit R, I hold that the Court below was

right when it held that the tenor of Exhibit Q, considered

holistically, was for an initial period of five years and in the

absence of any evidence of its renewal lapsed at the

expiration of the five years and the copy right in the

affected musical works reverted to the Respondent. In law

parties to a contract validly and voluntarily entered into by

them are bound by the terms of their contract and none of

them would be allowed to want out from it except at the

pain of damages for breach of the contract. Thus, a Court of

law must respect the sanctity of the agreement reached by

the parties, where they are in consensus ad idem as

regards the terms and conditions freely and voluntarily

agreed upon by them in order to avoid re - writing their

agreement for them. See Babatunde V. BON Ltd (2011)

18 NWLR (Pt. 1279) 738 @p. 777, where the Supreme

Court had per Adekeye JSC, stated inter alia thus:

"In the interpretation of contractual transaction,

Court will always hold parties bound by the terms of

their agreements when construed according to the

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strict, plain and common meaning of the words in the

instrument as they stand."

See also Solicitor General, Western Nigeria V

Adebonojo (1971) 1 All NLR 178; UBN V. Ozigi (1994)

3 NWLR (Pt. 333) 385; AG. Rivers State V. AG. Akwa

Ibom State (2011) 8 NWLR (Pt. 1248) 31 ® pp. 83 -

84; Hillary Farms Ltd V. M/V Mahtra (2007) 14 NWLR

(Pt. 1054) 21; Arjay Ltd V. Airline Management

Support Ltd (2003) 7 NWLR (Pt. 820) 577;

Sona Breweries Plc. V. Peters (2005) 1 NWLR (Pt.

908) 478; Owoniboys Technical Services Ltd V. UBN

LTD (2003) 15 NWLR (Pt. 844) 545; ldufueko V. Pfizer

Products Ltd (2014) 12 NWLR (Pt. 1420) 96; Mobil V

Johnson (1961) 1 All NLR 93; Fagbuaro V. Akinbami

(2015) 6 NWLR (Pt. 1455) 358 @p. 373; Ihunwo V

Ihunwo (2013) 8 NWLR (Pt. 1357) 550 @p. 583.

The second, third and fourth pertinent questions, which I

shall consider together and resolve in one fell swoop, are

whether the Appellants had, despite the expiration of the

five years as granted to the 1st Appellant by the

Respondent in Exhibit Q and the orders of injunction by

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the Court below against them, persisted in and continued

the reproduction and distribution of the musical works of

the Respondents and thereby infringed on his copy right to

those musical works? c: whether Exhibits 01 - 06 and P1-P7

were evidence of either infringement or pirating of the

musical works of the Respondent and by whom? and d;

whether the Respondent made out his claim for damages

against the Appellants?

The case of the Respondent as Claimant before the Court

below was his claim to reversionary interest in the copy

right of his musical works on the expiration of five years,

term granted in Exhibit Q and the consequent obligation on

the Appellants to stop further reproduction of his musical

works and by implication to return his musical works in

possession of the Appellants to him. It was never his case

that his works, including Exhibits P4 - P7 and 01 - 05

bearing the name and insignia of the Appellants were

pirated by any person but that they were his musical works

reproduced by the Appellants after the expiration of the

term of five years granted in Exhibit Q and the interim, and

interlocutory injunctions of the Court below in Exhibit T.

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At the trial, the DW1 under cross examination had admitted

unequivocally that the reproduction and distribution of the

musical works of the Respondent had continued unabated

by the 1st Appellant, and this is notwithstanding his further

admission that the contract in Exhibit Q entered in 1970

between the parties was for a five-year period. When

confronted with Exhibit P4 - P7 and 01 - 05, DW1 denied

that they were produced by the Appellants and stated that

they were pirated copies of the musical works of the

Respondent. So, who as between the Appellants, who so

alleged that those Exhibits, bearing their name and

insignia, were pirated and the Respondent who alleged that

those musical works were reproduced by the Appellants

despite the expiration of Exhibits Q and the orders of

injunctions of the Court below?

It is my view, and I so hold, that on the face of the copious

credible evidence of the Respondent as PW1 as to the terms

of the agreement between the parties in Exhibit Q and the

evidence of continued reproduction and distribution of the

musical works of the Respondent despite the expiration of

the five years as agreed upon by the parties in 1970 in

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Exhibit Q, the burden of at least introducing evidence of

pirating of those musical works Exhibit P4 - P7 and 01 - 05

found with the name and insignia of the 1st Appellant was

on the Appellants who so alleged through DW1 and not on

the Respondent who made no such assertion. Thus, the

statement of the Court below that the DW1 did not explain

how he came to know that those Exhibits P4 - P7 and 01 -

05 were pirated did not in any way amount to either

making a case for the Respondent or requiring the

Appellants to prove the case of the Respondent for him.

In law, the Appellant having asserted that they did not

reproduce those Exhibits but that they were pirated copies

of the musical works of the Respondent, carried with them

the burden of proving what they had asserted positively. If

the complaint of the Appellant were simply that the Court

below misapprehended the burden of proof then perhaps

this issue would have properly arisen and would on the

evidence and proceedings before the Court below still be

resolved against the Appellants since there was no

misapprehension of the burden of proof as the Court below

rightly observed and

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stated that since it was the DW1 that stated that those

Exhibits were pirated he ought to have explained how he

came to know or at least what he meant by they were

pirated copies of the musical works of the Respondent,

which it also rightly found the Appellants failed to

discharge the burden of them to so do. See UBA Plc. V.

Chief C. E. Ubokulo & Ors. (2009) LPELR - 8923 (CA).

See also Biezan Exclusive Guest House Ltd. & Ors. V.

Union Homes Savings & Loan Ltd. (2010) LPELR -

3876 (CA).

Now, the claim of the Respondent was founded on vesting

of copy right in his musical works, alleged reversion of copy

right at the expiration of five years as granted in Exhibit Q,

alleged infringement of his copy right and then of his group

in their musical works by the Appellants and damages for

infringement of the copy right in his musical works. Their

claims are, in my finding, strictly within the exclusive

jurisdiction of the Court below and to no other Court else.

The Court below had averted its mind to this issue and had

correctly arrived at the conclusion that the claim bordering

on the copy right of the Respondent was clearly within its

competence to hear and determine.

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On the issue of lack of jurisdiction of the Court below to

award damages as raised by the Appellants on the ground

that there was no evidence of any entitlement to damages

by the Respondent against the Appellants, it does appear to

me that it is the conception that a Court which has the

jurisdiction to entertain the subject matter of a suit would

also need another form of jurisdiction to award damages in

the same suit is clearly a misconception. In law, once a

Court has the jurisdiction to determine a claim before it, it

would also have the power to award damages if made out

by the party seeking it. A Court does not need additional or

separate jurisdiction to award damages, since the power to

award damages if made out is one concomitant or

conterminous with the jurisdiction to determine the claims

before it. Thus, in practice, a challenge to the award of

damages by a Court is usually founded on either that the

entitlement to damages was not made out by the party

claiming it or that the Court had applied wrong principles

in the assessment and eventual award of damages. It can

hardly be a jurisdictional issue once the Court has the

jurisdiction over the claims in the suit.

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My Lords, on the state of the pleadings and evidence as led

by the parties, when put on the imaginary scale of justice,

the consistent, credible and cogent evidence of the

Respondent preponderates and weighs far more than the

spurious and porous evidence led by the Appellants, and I

find and I so hold that the Court below was correct and on

a firmer ground when it held that 'the Appellants had,

despite the expiration of the five years as granted to the 1st

Appellant by the Respondent in Exhibit Q and the orders of

injunction by the Court below against them, persisted in

and continued the reproduction and distribution of the

musical works of the Respondents and thereby infringed on

his copy right to those musical works. I find further that the

Court below was also right when it held that Exhibits 01 -

06 and P1 - P7 were evidence of infringement of the copy

right in the musical works of the Respondent by the

Appellants and that the Respondent having proved the

infringement of the copy right to his musical works by the

Appellants, long after the expiration of the five year terms

granted in Exhibit Q, was in

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law entitled to damages against the Appellants. In law, a

claim of infringement of copyright is actionable at the suit

of the owner and all such relief by way damages,

injunctions, accounts or otherwise shall be available to as

Claimant as is available in any corresponding proceedings

in infringement of other proprietary rights. See Section 16

(1) of the Copyright Act C28. LFN 2004. See also

M.C.S. (Nig.) GTE V. Adeokin Records (2007)13

NWLR (Pt. 1052) 616 @p. 627.

In the instant appeal, since the only complaint as regards

damages was lack of evidence in proof thereof, and having

taken time to consider the evidence as led by the

Respondent as PW1 as regards his claims for damages

together with the findings of the Court below on this issue,

I find that there was surfeit of evidence of the enormous

damages caused the Respondent by the callous acts of

continued infringement of the copy right to the Respondent

by the Appellant through 'the continuous reproduction and

distribution of the musical works of the Respondent and his

group long after the expiration of the five years granted in

Exhibit Q in 1975. The Respondent, in my finding therefore,

proved his entitlement to damages against the

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Appellants and the Court below was thus perfectly right to

have so held and to award him damages against the

Appellants.

On the quantum of damages, though not even made an

issue by the Appellants in this appeal, I have looked at the

parameters used in the assessment of damages by the

Court below leading to its rejection of some of the several

heads of special damages claim of the Respondent and

granting the amount in damages to the Respondent as

proved against the Appellants, and I am satisfied, indeed

pleased, that the Court below applied the correct principles

of assessment and award of damages in arriving at the

damages awarded to the Respondent against the

Appellants, which damages I find further was adequate and

neither outrageous nor too meager. In law, damages

awarded in any given case can only be regarded as

excessive if it exceeds the monetary jurisdiction of the

Court or the monetary claim made by the party himself. It

is also the law that the award of damages is a matter of

discretion for a trial Court. Thus, this Court, on the correct

principles of award of damages as applied by the Court

below, cannot interfere with

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the award of damages as correctly assessed by the Court

below in this appeal. See F.B.N. Plc. V. M O. Nwadialu &

Sons Ltd. (2016) 18 NWLR (Pt. 1543) 1. See also

Tidex Nigeria Ltd V. Joy Maskew & Anor. (1998) 3

NWLR (Pt. 542) 412; U.B.A. Plc. V. Eromosele Omiyi

(2010) 1 NWLR (Pt. 1176) 646; Inland Bank Nigeria

Plc. & Anor. V. Fishing & Shrimp Co. Ltd (2010) 15

NWLR (Pt. 1216) 403.

In the circumstances therefore, having found that the Court

below was right in its finding on all the crucial issues as

joined by the parties and had arrived at the correct

conclusions in the judgment appealed against as regards

the claims of the Respondent against the Appellants, in law

this Court would have no business interfering with these

correct findings of the Court below. This is so because, an

appellate Court has no duty interfering with the correct

findings of a trial Court even where the reason adduced

and relied upon by the trial Court to arrive at the correct

findings turns out to be 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 issue thus:

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"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 I have stated and found above, issue one

is hereby resolved against the Appellants in favour of the

Respondent.

ISSUE TWO

Having regards to the state of the pleadings and the

issues joined therein and the evidence led thereon by

the parties, as well as the applicable laws, whether

the Court below was right when it held that the 1st

Appellant failed to prove his counter- claim and was

thus not entitled to judgment on his counter - claim

against the Respondent?

APPELLANTS' COUNSEL SUBMISSIONS

On his issue five, learned counsel for the Appellants had

submitted that the findings and conclusions of the Court

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below leading to the dismissal of the counter - claim of the

Appellant were spiteful and full of contempt for the 1st

Appellant and contended the dismissal of the counter-claim

of the 1st Appellant by the Court below was perverse and

affected by lack of due attention to and fair construction of

the documentary Exhibits and without due regard to the

pleadings and the evidence before it and urged the Court to

hold that on the evidence led the 1st Appellant having

invested so much of its funds on the Respondent pursuant

to the terms of and by virtue of Exhibit Q, the right of the

1st Appellant to continue to derive income from the

investment which was the seed of the popularity and

prosperity of the Respondent has been earned and to allow

the appeal and set aside the perverse dismissal of the

counter claim of the 1st Appellant by the Court below and

in its place enter judgment for the 1st Appellant on its

counter - claim against the Respondent.

RESPONDENT'S COUNSEL SUBMISSIONS

On his issues 8 and 9, learned counsel for the Respondent

had submitted that apart from the 1st Appellant's third

relief for damages in the sum of 500 Million, the two other

reliefs

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sought by the 1st Appellant were declaratory which is

discretionary and thus can only be granted when the Court

is of the view that the party seeking it, is when all the facts

are taken into consideration, fully entitled to the exercise of

the Court's discretion in his favor and contended that on

the face of the pleadings and evidence led thereon by the

parties, the Court below was right when it dismissed the

1st Appellant's counter – claim for lacking in merit and

urged the Court to hold that the counter - claim of the 1st

Appellant, as was also rightly found by the Court below,

was merely an attempt to usurp the Respondent's copyright

in the musical works in issue. Counsel relied on Onuoha V.

Okafor (1983) 10 SC (Reprint) 75; Obi V. INEC & 6

Ors. (2007). 7 SC 268; Zenith Bank V. Ekereuwem

(2012) 4 NWLR (Pt.1290) 207; Clay Industries (Nig.)

Ltd. V. Aina (1997) 8 NWLR (Pt. 516) 208; Adeleke V.

Aserifa (1986) 3 NWLR (Pt. 30) 575.

APPELLANTS' COUNSEL REPLY SUBMISSIONS

In his reply, learned counsel for the Appellants had

submitted that in law the success of the 1st Appellant'

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counter - claim is not dependent on whether or not the

interim order made by the Court below had been set aside

and contended that all the attempts at adducing evidence

in support of the case of the Respondent in the submissions

of his counsel in the Respondent's brief should be

discountenanced as going to no issue in this appeal and

urged the Court to hold that the 1st Appellant made out its

counter claim and was thus entitled to judgment on its

counter claim against the Respondent, to allow the appeal,

set aside the judgment of the Court below and in its stead

enter judgment for the 1st Appellant on its counter - claim

against the Respondent. Counsel relied on Nwokedi V

U.B.N PLC (1997) 8 NWLR (Pt. 517) 407 @ pp. 416 -

417; Okuleye V Adesanya (2014) 6 - 7 MJSC (Pt. II) 98

@ p. 116; Ishola V. Ajiboye (1998) 1 NWLR (PT 532)

71 @ p. 81; Chukujekwu V. Olalere (1992) 2 NWLR

(Pt. 221) 86 @ P. 93; Bello V. N.B.N (1992) 6 NWLR

(Pt. 246) 206 @ p. 214.

RESOLUTION OF ISSUE TWO

My Lords, issue two deals frontally with the counter claim

of the 1st Appellant against the Respondent as to the

proprietary or otherwise of its dismissal by the Court

below.

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Now, two out of the three reliefs claimed by the 1st

Appellant against the Respondent are declaratory in nature

and in law the grant of a declaratory relief is discretionary

and thus can only be granted when the Court is of the view

that the party seeking it, when all the facts are taken into

consideration, is fully entitled to the exercise the Court's

discretion in his favor. See Onuoha v. Okafor (1983) 10

(Reprint) 75. See also Obi V. INEC 6 Ors (2007) 7 SC

268; Zenith Bank V. Ekereuwem (2012) 4 NWLR (P1.

1290) 207; Clay Industries (Nig.) Ltd. v. Aina (1997) 8

NWLR (Pt. 516) 208; Adeleke V. Aserifa (1986) 3

NWLR (Pt. 30) 575.

I had while considering issue one reviewed the entirety of

the pleadings and evidence including the cross-examination

evidence of the witnesses, PW1, DW1 and Dw2, as led by

the parties as in the printed record. Here is the 1st

Appellant, a counter claimant, whose witness, DW1, was

taken to the cleaners in his cross-examination and ended up

admitting most of the crucial facts as pleaded by the

Respondent and on which I have held that the claim and

evidence of the Respondent was left unchallenged and had

affirmed the finding of the Court below in favor of the

Respondent against the Appellant under issue one.

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In the judgment appealed against, the Court below

considerably considered the counter claim in the light of its

findings on all the issues as joined by the parties and came

to the conclusion inter alia thus:

"COUNTER-CLAIM...There is no doubt that the 1st

Defendant's counter-claim is founded generally on

Clause (6) of the Agreement dated 6/10/1970 in

Exhibit Q and the claim of N500m based on the order

of injunction led by the Federal High Court in Exhibit

T. As this Court has already made full pronouncement

on the Clause 6 in the main suit...It is sufficient to say

that it is certainly absurd to construe that clause as

having absolutely assigned the Plaintiff's copyright to

the 1st Defendant whereas other provisions in the

agreement made it clear that it had a tenor of five

years... it appears that the 1st Defendant and its

cohorts stuck to the skewed interpretation of Clause

6 more out of mischief… Generally, I hold the

respectful view that this counter-claim is

misconceived and borne out of deliberate mischief.

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It actually portrays the 1st Defendant as not being

penitent for its wrongful acts. I further hold that the

1st Defendant’s claim for N500 Million damages is

unfounded since by the injunctive order of the

Federal Court (Exhibit T) made in favor of the

Plaintiff, was pursuant to exercise of right by the

Plaintiff to protect his copyright. The copyright in

the musical works of the Plaintiff automatically

reverted to bill after 5/10/1975 as clearly stated in

Exhibit 'R'. The 1st Defendant only chose to usurp the

copyright and hence not entitled to any legal remedy.

I therefore hold that the counter-claim is devoid of

and is hereby dismissed..." See pages 1021 -1062 in Vol.

111 of the records of appeal.

Now, in law it is trite that a counter - claim is a separate

and independent claim by itself and thus the Counter

Claimant therein can only succeed, particularly so where

the claims in the counter - claim are principally declaratory

in nature as in the instant appeal, on the strength of his

own case and not on the weakness the defense. The 1st

Appellant's case as put forward in support of the counter

claim was not only by itself lacking in strength but was also

irredeemably

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destroyed by the devastating cross - examination evidence

of the DW1. See Momodu Olubodun & Ors V. Oba

Adeyemi & Anor (2008) 6 -7 SC (Pt. 111)1.

In the circumstances therefore, of the pleadings, evidence

and proved facts in this appeal, it does appear to me that

the counter claim of the 1st Appellant was filed merely as a

tool of harassment and oppression of the Respondent. In

law, if the claim of a claimant constitutes an abuse of Court

process, it does not and cannot give rise to or become a

cause of action for a counter claim by a Defendant but

rather such a Defendant has open to him several ways of

challenging a such a claim which in his opinion constitutes

an abuse of the process of the Court. He either may raise it

as a preliminary objection to get the claim terminated in

limine or proceed to defend the claim to get it defeated in

the end and be ask for and possibly obtain substantial cost

against such a Claimant.

However, regrettably the 1st Appellant took neither of

these proper steps but rather filed a counter claim against

the Respondent claiming inter alia: 'A declaration that the

action instituted by the Plaintiff in this case and

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especially seeking and obtaining an order of injunction

retraining the 1st Defendant from exercising the rights

incidental to the ownership of the copyright in all the

musical works produced by the Plaintiff pursuant to the

agreement of 6/10/1970 is an abuse of judicial process

undertaken to the prejudice and financial loss of the 1st

Defendant and the sum of N500,000,000.00 being damages

suffered by the 1st Defendant between 1997 and 2013 and

until final judgment arising from the Plaintiffs resort to and

obtaining an order of injunction which they knew or ought

to know constitutes an abuse of process.

My Lords, the counter claim of the Appellant, save relief

three therein which claim was not in least supported by any

credible evidence from the Appellants, is in my view both

preposterous and strange in our system of administration of

civil justice and litigation in Nigeria and since in law

declaratory reliefs are discretionary and thus can only be

granted when the Court is of the view that the party

seeking it, when all the facts are taken into consideration,

fully entitled to the exercise the Court's discretion in his

favor, can it be said that the

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1st Appellant is one fully entitled to the exercise of the

discretion of the Court below in its favor in respect of the

declarations sought against the Respondent? I think not!

The Court had held, and quite rightly too in my finding, that

the 1st Appellant was not so entitled and thus rightly

dismissed it for lacking in merit.

In the light of all I have stated and found above, issue two

is hereby resolved against the Appellants in favor of the

Respondent. In the circumstances therefore, the appeal

lacks merit and ought to be dismissed. Consequently, it is

hereby so dismissed.

In the result, the judgment of the Federal High Court,

Lagos Judicial Division, Coram: J. T. Tsoho J., in Suit No.

FHC/L/CS/196/1997: King Sunday Adeniyi Adegeye V.

African Songs Limited & Anor, delivered on 12/11/2016, in

which some of the claims of the Respondent as Claimant

were granted against the Appellants as Defendants is

hereby affirmed.

There shall be cost of N200,000 against the Appellants in

favor of the Respondent.

TOM SHAIBU YAKUBU, J.C.A.: I am in agreement with

the reasons proffered by my Lord, BIOBELE ABRAHAM

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GEORGEWILL JCA, in the lead judgment, which culminated

in the dismissal of the appeal, in its entirety.

Let me just chip in a word, with respect to the

1st appellant's counter-claim. The law is well settled to the

effect that a counter- claim is an independent and separate

action of its own although it is usually an offshoot of the

main claim. It is in fact, a cross action whereby the

defendant becomes the plaintiff and the plaintiff in the

main action, takes on the status of a defendant. Therefore,

the success or failure of the main action does not

necessarily, translate to the success or failure of the

counter- claim.

Hence the counter-claimant if he so desires, files his

pleadings on it and must lead hard evidence in proving the

averments in it, just the same as the plaintiff in the main

action does. The corollary is that all the rules of pleadings

and the evidential principle that he who alleges must

provide evidence to prove his allegations as averred in the

main action are applicable to a counter-claim. The essence

of trying the counter-claim along with the main action is for

convenience and for saving cost of filing and trying another

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action separately, where the facts in the two actions are

virtually the same, Chief Emmanuel Ogbonna v.

Attorney General of Imo State (1992) 2 SCNJ 26;

General Yakubu Gowon v. Mrs. Ike Okongwu (2003) 6

NWLR (pt. 815) 38; Attorney General, Lagos State

v. Attorney General Federation (2004) 12 SCNJ 1@ 39;

Ogli Oko Memorial Farms Ltd & Anor v. Nigerian

Agricultural & Cooperative Bank Ltd & Anor. (2008)

12 NWLR ( pt. 1098) 412 @ 428; (2008) 4 SCNJ 436.

It seems to me, that in the circumstances and facts of the

instant matter, the 1st appellant's counter-claim, was no

more than a mere retaliatory action against the

respondent's action. There was no shred of evidence, in

support of the counter-claim, which woefully failed.

I too dismiss the appeal for being devoid of merits. Hence,

the judgment rendered by J.T. Tsoho, J., in Suit No.

FHC/L/CS/196/1997 at the Federal High Court, Lagos

Division, on 12 November, 2016 is hereby affirmed.

I adopt the award of costs, as contained in the lead

judgment, as mine.

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ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: Iread before now the lead judgment of my learned brother,BIOBELE ABRAHAM GEORGEWILL, JCA, just delivered. Iagree with his reasoning and conclusion arrived thereat.My learned brother had ably dealt with all the issues raisedfor determination in this appeal and I have nothing more toadd.

I agree that the appeal lacks merit and it is herebydismissed. The judgment of the lower Court coram TSOHO,J., delivered on 12/11/2016 is hereby affirmed. I also abideby the order as to costs.

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Appearances:

Abimbola Olowoyeye Esq., of Ademola Olowoyeye& Co, Graceland Chambers with him, C.I.Ajakaiye, Esq. For Appellant(s)

A. A. Adeniran Esq., of Chief F. O. FagbohungbeSAN & Co, with him, O. Omotoye, Esq. ForRespondent(s)

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