National Film & Video Censors Board & Anor V. Akinola Adegboyega & Ors. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHINWE E. IYIZOBA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the rulings of Nnamani J. sitting at the Federal High court Osogbo Judicial Division dated 23/3/04. In their originating summons, the respondents sought the following reliefs from the lower court:-

1. A declaration that the defendants cannot compel the plaintiffs who are not distributors of video works but shop owners who sell video cassettes to end users (alongside other types of cassettes e.g Audio or CD or VCD) to register with the defendants for a fee of N5000.00 (five thousand naira) or for any amount howsoever.
2. A declaration that the arrest of some of the plaintiffs through the complaint of the defendant or the seizure of the plaintiffs’ goods is ultra vires wrongful and not in consonance with the Film and Video Censors Board Decree 1993.
3. An order compelling the defendants to refund any such money collected from the plaintiffs as registration or licensing fee.

The defendants/appellants’ reaction to the originating summons in addition to their counter affidavit in opposition was to file a motion on notice praying for an order striking out the name of the 2nd defendant for misjoinder and striking out the suit for incompetence, lack of cause of action and absence of locus standi. The lower court in the ruling of 11/3/04 found that the 2nd defendant was a necessary party and was properly joined as a party to the proceedings. The court also found that Decree No. 85 of 1993 did not include private sales by ordinary individual sellers and consequently dismissed the defendants/applicants’ motion. The lower court heard the plaintiffs respondents’ arguments in respect of the originating summons on 23/3/04 in the absence of defendants/appellants’ counsel and there and then delivered its ruling granting relief no. 3 of the originating summons ordering the defendants to pay to the plaintiffs the amount therein which is N10,000.00. Dissatisfied with these rulings, the defendants/appellants appealed to this court by a notice of appeal containing 9 grounds of appeal. The appellants’ brief of argument is dated and filed on 1/7/05 but deemed properly filed on 7/3/06.

The respondent did not file any brief so the appellants by motion on notice applied and were granted leave on 4/5/11 to argue the appeal on their brief alone. The appeal was consequently heard on the same 4/5/11 and reserved for judgment. The judgment was not delivered due to the elevation to the Supreme Court of the then presiding Justice, Ngwuta JCA (as he then was). The appeal was adjourned to 8/2/12 for re-hearing. The respondents were duly served on 30/1/12. They did not appear and did not file their brief of argument. The appellants then argued the appeal urging the court to allow the appeal and to set aside the ruling and judgment of the lower court.

Out of the 9 grounds of appeal, the appellants formulated the following issues for the determination of this court:-

1. Whether the provisions of Decree No. 85 of 1993 for registration of a person who carries on the business of distributing or exhibiting of films and video works and licensing of all premises where films and video works are exhibited include the premises of the Plaintiffs.
2. Whether the Federal High Court, Osogbo Judicial Division was right in assuming jurisdiction over the 2nd defendant/appellant against whom no cause of action is disclosed both by the originating summons and the affidavit in support.
3. Whether the 2nd defendant can be made personally liable for the act of the 1st defendant.
4. Whether the appellants were denied the right of fair hearing by the Federal High Court, Osogbo Judicial Division in the hearing of the Originating Summons.

ISSUE I

1. Whether the provisions of Decree No. 85 of 1993 for registration of a person who carries on the business of distributing or exhibiting of films and video works and licensing of all premises where films and video works are exhibited include the premises of the Plaintiffs.

After setting out the provisions of Sections 26(1), 18(1), and 68 of the National Film and Video Censors Board Decree 1993, learned counsel for the appellants submitted that the provisions of the Decree apply to the premises of the respondents. Learned counsel further submitted that it was wrong for the respondents at the lower court and also the lower court itself to fall back on Form 2 of the second schedule to the Decree to arrive at the conclusion that the provision of Section 26(1) of the Decree applies to ‘main’ distributors only. Counsel relying on the case of Alhaii Aminu Dantosho v. Alhaji Abubakar Mohammed (2003) 6 MJSC 97 @ 104 ratio 13 submitted that there is nothing in Section 68 of the Decree that warrants the trial court going outside the section to look for another interpretation of the word ‘distributor’ by importing the word ‘main’ as the definition and wordings of the section are clear and unambiguous.

Learned counsel argued that the respondents having admitted in their relief no. 1 that they are shop owners who sell video cassettes to end users, they come within the definition of distributors in section 68 of the Decree as persons engaged in the business of selling films and video works. Counsel submitted that they consequently fall within the purview of the section of the Decree requiring distributors to register with the National Film and Video Censors Board and urged the Court to so hold.

I have considered carefully the submissions of counsel on this issue, and I would begin by setting out in full the relevant sections of the Statute before considering whether the provisions apply to the premises of the respondents or the respondents themselves. Although the parties kept referring to the relevant statute as a Decree having been promulgated during the Military Regime, it is proper now to refer to it as an Act. It is now Cap 40 of the Laws of the Federation of Nigeria. There are slight variations in the numbering of the sections.

Section 17 of the National Film and Video Censors Board Act, Cap 40 Laws of the Federation provides:-

(1) Subject to the provisions of this Act no person shall exhibit a film or video work unless he is a holder of a license granted by the Board under this Act.

(2) No premises shall be used for a film or video exhibition except under and in accordance with a license granted in respect of the premises under this Act.

Section 25(1) provides: –

“As from the commencement of this Act, no person shall carry on the business of distributing or exhibiting a film or video work, unless he is a holder of a license granted by the Board under this Act.”