Evangelist Mrs. Helen Ukpabio & Anor. V. National Films And Video Censors Board (2008)
LawGlobal-Hub Lead Judgment Report
PETER-ODILI, J.C.A.
By a writ of summons filed on the 11th day of November, 2002, the plaintiff claimed the following reliefs at the lower court:-
1. A Declaration that the refusal of the defendant to approve the plaintiff’s films titled “Rapture” Part 1 and 2, for release and distribution is unconstitutional, illegal, null and void as it violates section 39 (1) of the 1999 Constitution of the Federal Republic of Nigeria, and the procedures outlines in the National Films Video Censors Board Degree (Act) Non. 85 of 1993.
2. A Declaration that the inaction/refusal or neglect of the defendant in respect of setting up an appeal committee within 60 days to decide the appeal lodged by the plaintiff against its decision not to approve the plaintiffs’ films titles “Rapture” part 1 and 2, for release and distribution is unconstitutional, illegal, null and void and that the defendant by this, is deemed to have accepted the appeal lodged by the plaintiffs.
3. A Mandatory Order compelling the defendant to classify and approve for release, the films known as “Rapture” part 1 and 2, as presented to it and corrected by the plaintiffs.
Alternatively
An order of interlocutory injunction restraining the defendant, whether by itself, its agents, servants, privies or otherwise howsoever from restricting or distributing in any way the sale, distribution or marketing of the films known as “Rapture” (Pt. 1 and 2), until the final determination of this matter.
Facts briefly stated
The gravamen of the plaintiff’s case is that the 1st plaintiff (now 1st appellant) is a renowned Christian evangelist of the word of God who heads several churches in Nigeria and West Africa. The 1st plaintiff is also a trustee of the Liberty Foundation Gospel Ministries, incorporated. The 2nd plaintiff is a body registered under Part C of the Companies and Allied Matters Act, 1990, to carry on the propagation of Bible teaching. The respondent is a legal entity, with perpetual succession and a common seal, capable of suing and being sued in its corporate name, and is set up by the National Films and Video Censors Board Degree (Act) No. 85 of 1993. The appellants’ case is that as part of their efforts to preach and teach the bible to their members and prospective converts, they engage in the production and distribution of home video (video films).
It was in the pursuit of this goal that sometime early in the year 2002, they finished the production of a video film titled “Rapture part 1 and 2,” which in short, teaches their perspective of the rapture as foretold by the Bible. The plaintiffs (appellants) thereafter presented the films to the defendant (respondent) for censorship. By letters dated 14/6/2002, the defendant through its executive director wrote to the plaintiffs directing the plaintiffs to effect certain corrections in some scenes in the films. The letters shall be relied on at the trial of the action. The plaintiff effected the said corrections and resubmitted the films for censorship. By a letter dated 8th August, 2002 the defendant again, through its executive director, wrote to the plaintiffs totally refusing that the film be released.
Being dissatisfied with the decision of the defendant and in line with section 51(1) of the National Films and Video Censors Board Decree (Act) No. 85 of 1993, the plaintiff, through their counsel, Festus Keyamo of Festus’s Keyamo Chambers sent a notice of appeal against the decision to the defendant accompanied by the grounds of appeal. It was received by the defendant’s employee on the 28th of August, 2002. But the defendant still refused and/or neglected to set up an appeal committee to look into the matter. The plaintiffs then informed the defendant of their intention to commence legal action if they do not take the right steps in rectifying the wrong done to the plaintiffs. The notice of intention was dated 7th of October, 2002 and signed for by the defendant’s employee on 8/10/02. Despite these notices to the defendant, it continued to maintain an uncompromising posture over this matter and failed, refused and/or neglected to censor the plaintiff’s films titled “Rapture” – Part. 1 and 2.
The plaintiffs then proceeded to court to claim the reliefs stated above. At the trial, the plaintiffs called two witnesses while the respondent called four witnesses. The lower court coram: Adah J. A dismissed the appellants’ claims. Being dissatisfied with the judgment of the trial court, the appellants have appealed against same to the Court of Appeal by lodging in the court below a notice of appeal dated the 17th day of January, 2006 containing 6 grounds of appeal Issues for determination
The appellant on the 8/9/06 filed their brief of argument wherein they formulated five issues viz: –
1. Whether the learned trial Judge was right in law and in fact to have condemned in strong terms the counsel to the plaintiff who gave evidence at the lower court for doing so.
2. Whether the respondent in this appeal complied strictly with the provisions of the National Film and Video Censors Board Act in the censorship of the appellants’ films.
3. Whether the learned trial Judge was right when he held that the appellants did not prove that they paid any fee for the appeal lodged with the respondent, hence the respondent failed to consider the appeal
4. Whether it is constitutional for the respondent to regulate home videos, as in this case as distinct from CINEMATOGRAPH FILMS,
5. Whether the learned trial Judge was right in ignoring the request of the plaintiffs for the record of proceedings to prepare their address and failing to explain why he did so.
The respondent filed their brief of argument on 9/10/06 and formulated five issues for determination, which are as follows: –
1. Whether the comment of the learned trial Judge on the propriety of the appellant’s counsel putting himself into the heart of the case by turning himself into a witness of fact adversely affected the case of the appellants.
2. Whether the learned trial Judge was wrong in holding that the appellants never printed out any non-compliance or infraction of the provisions of the National Film and Video Censors Act in the censorship of the appellants’ films.
3. Whether from the evidence placed before the learned trial Judge, His lordship was wrong when he held that the appellants did not effect payment for the appeal said to be lodged with the respondent over the refusal to approve and classify the contentious films and that the appeal must first be to the board (National Film and Video Censors Board).
4. Whether the learned trial Judge was wrong in the circumstance of the instant case to have held that it is constitutional and legitimate for the respondent to regulate home videos and other cinematography films.
5. Whether the learned trial Judge was wrong in remaining silent in the judgment of the court below on the issues of the plaintiff’s request for the record of proceeding to prepare their address.
I shall utilise the issues as couched by the appellant for ease of reference.
Issue One
Whether the learned trial Judge was right in law and in fact to have condemned in strong terms the counsel to the plaintiff who gave evidence at the lower Court for doing so.
Learned counsel for the appellant, Mr. Keyamo stated that the learned trial Judge was wrong in fact and in law to have condemned the counsel to the plaintiff at the lower court for giving evidence in the matter which concerned only the professional part he played in the matter, (i.e. the service of processes on the defendant and the obtaining of receipt for them). He referred to the remarks of the trial Judge which are stated at 101-102 which remark of the trial Judge was serious and impugned the professional ability and capability of counsel to the plaintiff at the lower court, hence it was made a ground of appeal. That if that was left unchallenged, it would forever be a slur on the professional image of counsel. That the general principle of law is that a court cannot make a pronouncement in an issue without asking counsel to address it on the issue. That it is wrong for a court to raise an issue suo motu during judgment and make a decision on it and that was a breach of the right to fair hearing. He cited the case of Ajibola v. Sogeke (2003) 9 NWLR (Pt. 826) 494 at 533. That generally a court should not take up a point suo motu and decide upon it without hearing the parties, although a court can take up a matter suo motu and decide upon it without hearing the parties under its inherent powers in the interest of justice. He cited Adeleke v. Raji (2002) 13 NWLR (Pt. 783) 142 at 154 and Nteogwuile v. Otuo (2001) 16 NWLR (Pt. 738) 58 at 79.
Learned counsel stated that there was no objection by counsel to the defendant/respondent. That the court did not raise the issue of the propriety of counsel giving evidence and this throughout the proceedings only for the court to drop it during judgment. He urged the court to overrule that decision of the lower court on the propriety of counsel for the plaintiff/appellant on the basis of a breach of fair hearing.
Mr. Keyamo further stated that in situations such as the present where the counsel and him alone has knowledge of the facts and if he does not give evidence, the court will not be assisted in making a decision. In a case as stated herein the counsel can testify and must do so. He cited the case Obadara v. President, I.C.C. (1964) 1 All NLR 336; Digest of the Supreme Court Cases volume 8 edited by Gani Fawehinmi at pp 157-158; Horn v. Rickard (1963) N.N.L.R 67; Dada v. University of Lagos (1970) NCLR 542; Aunam (Nig.) Ltd. v. U.T.C. Nigeria Limited (1995) 4 NWLR (Pt. 392) 753 at 765.
Learned counsel for the respondent, Mr. Onyilokun said that the learned trial Judge’s remark did not in any manner affect the weight attached to evidence of PW2 who is counsel to the appellant in this appeal. That no miscarriage of justice was occasioned as a result of the comment of the learned trial Judge even if raised suo motu. He cited Ibori v. Agbi (2004) 6 NWLR (Pt. 868) 78 at 132-135 H -A.
Mr. Agbonifo said the learned counsel for the appellant is only inviting this Court to indulge in a mere academic exercise as there is no issue to be determined. He cited Ogbonna v. President Federal Republic of Nigeria (1997) 5 NWLR (Pt. 504) 281 at 287; Asafa Foods Factory Ltd. v. Alraine Nigeria Lid. (2002) 12 NWLR (Pt. 781) 353 at 368-369 B-C; Badejo v. Federal Minister of Education (1996) 8 NWLR (Pt. 464) 15 at 50 B-E; L.PD.C. v. Gani Fawehinmi (1985) 2 NWLR (Pt. 7) 300 at 64 e-F; Nwana v. F.C.D.A (2004) 13 NWLR (Pt. 889) 128 at 141.
The learned trial Judge had while delivering his judgment stated:
‘The learned counsel for the plaintiffs who testified in this case said that he lodged the appeal and paid for the appeal. He however, could not produce any evidence of the payment for the appeal. I do not intend to make an issue of the propriety of a counsel in the case putting himself into a witness of fact but it must be said here that in aid of the sanctity of professional ethics of the legal profession, a counsel appearing in any case must as much as possible detach himself from the burden of being an interested party to that of carrying out the due diligence of his professional calling by which he is recruited as counsel. It is not only odd but it is in bad taste to see counsel robbing down to become a witness in the case he is a counsel and this must not be encouraged”.
A trial court must close its eyes to any irregularity latent or potent on record without suo motu dealing with it, as it could amount to injustice. Ajibola v. Sogeke (2003) 9 NWLR (Pt. 826) 494 at 533; Sodipo v. Lemminkainen Oy (No.2) (1986) 1 NWLR (Pt. 15) 220; ACB Plc v. Losada Nig. Ltd. (1995) 7 NWLR (Pt. 405) 26; Ijebuode Local Government v. Adedeji Balogun & Co. Ltd (1991) 2NWLR (Pt. 166) 136; Ajalyn Shoes Ltd. v. Akinwande (1992) 12 NWLR (Pt. 174) 432.
For the respondent, learned counsel on their behalf contends that what the appellant’s counsel, Mr. Keyamo is positing in this issue NO.1 is one of an academic enterprise and should not be allowed as not part of the contest on ground. There is no gainsaying that if no purpose will be served by an action or appeal or any issue raised in it other than its mere academic interest, the Court will not entertain it. The law is that it is an essential quality of a suit or an appeal fit to be disposed of by a court that there should exist between the parties a matter in actual controversy which the court undertakes to decide as a living issue. Moreover, a court deals only with live issues and steers clear of those that are academic. But there cannot be said to be a live issues in a litigation if what is presented to the court for a decision, when decided, cannot affect the parties in anyway. Atake v. Afejuku (1994) 9 NWLR (Pt. 368) 379; Akeredolu v. Akinremi (1986) 2 NWLR (Pt. 25) 710: Tanimola v. Surveys and Mapping Geodata Ltd. (1995) 6 NWLR (Pt. 403) 617; Ogbonna v. President of Federal Republic of Nigeria (1997) 5 NWLR (Pt. 504) 281 at 287.
I see nothing wrong or out of order in what the learned trial Judge said in the course of his finding. When the learned counsel for the appellant robbed down and entered into the witness box testifying for the appellant he stripped himself of the privilege of his calling and status in court and placed himself within the arena of battle and just like the trial Judge was within his powers to make comments or scold any witness nothing stopped the trial Judge from doing so with Mr. Keyamo, witness for the plaintiff. Like the saying you cannot make omelette without breaking eggs or better still if you don’t like the heat don’t get into the kitchen. It is for that reason that the learned trial Judge took the points in those comments suo motu and ought to have been addressed on them first by counsel on either side. I do not agree as the points were of those exceptional circumstances that preclude the general principle of being addressed first before the trial Judge Can raise or utilise the point. Moreover, Mr. Keyamo was a witness and so had no shield or cover from being denigrated if the learned trial Judge saw the need to. Also that is why the advice or admonition by the learned trial Judge should be taken in good faith as part of a learning process so that counsel is made aware that once he enters the arena as a witness or interested party he should be made to take whatever comes to any such witness in the prevailing circumstance. See Adeleke v. Raji (2002) 13NWLR (Pt. 783) 142; Olusanya v. Olusanya (1983) 1 SCNLR 134.
In the light of the above, I answer the question raised in this issue 1 positively and that is that the learned trial Judge was right to have condemned the conduct of the learned counsel for the role he played for which he had to testify in the proceedings.
Issue Two
Whether the respondent in this appeal complied strictly with the provisions of the National Film and Video Censors Board Act in the censorship of the appellants’ films.
Learned counsel for the appellant stated that the respondent is duty bound in law to comply with the provisions of the statute establishing it in the censorship of video films and any infraction of its own law, as happened in this case will render the whole process of censorship null and void. That the law is that any artificial person which is a creation of statue cannot act outside the powers or ultra vires the powers conferred on it by the statute creating it. He referred to Agoda v. Enamuotor (1999) 8 NWLR (Pt. 615) 407 at 416.
Mr. Keyamo said in this case the statute creating the respondent is the National Film and Video Censors Board Act, 1993 which law provides for the censorship of films by certain organs of the respondent. He referred to sections 36, 37, 38 and 56 thereof. That the responsibility to censor films is strictly that of the Films Censors Committee and the Zonal Video Censors Committee and that the respondent had not complied with those relevant provisions and that appellants’ counsel’s argument in the court below remain its argument herein.
Learned counsel for the respondent referred to the evidence of DW3, Patricia Paulina Bala and DW4, Clement Edeko to show that these showed clearly the strict compliance with the National Film and Video Censors Board Act 1993.
That the censorship criteria are provided for in section 37 of the said Act and the respondent fully complied with this section and also section 38 which gave absolute discretion, to approve a film to the film censors committee. That the burden of showing that the respondent did not comply with the Decree in the censorship of the said films rests squarely on the appellants who have alleged noncompliance with the law and they have not so discharged that burden. He referred to Uzokwe v. Densy Industries (Nig.) Ltd. & Anor (2002) 2 NWLR (Pt. 752) 528 at 544 C-D.
Learned counsel for the respondent said the exhibits 1, 1A and exhibit 2 which appellant claims to show as evidence of noncompliance with the Act are not so. That someone signed for the executive director did not detract from the censorship’s or approval by the appropriate authority as provided for in section 38 of the Act as at form 7 of the Second Schedule to the Act states the relevant detail. He cited section 5(3) of the act. That the appellants have cited section 132 of the Evidence Act, Cap 112, LFN, 1990 out of con, and so also Fasogbon v. Layade (1999) II NWLR (Pt. 628) 543 at 547.
For the appellants, it is submitted that the respondent which is the National Film and Video Censors Board had not complied with the relevant provisions of the Act setting it up which for our purposes are sections 36, 37, 38 and 56.The respondent countered this by saying that through their witnesses DW3 and DW4 they showed that they acted in strict compliance with the Act. That really it is not the respondent to prove that they complied but that the duty is that of the appellants to show and establish that non-compliance they allege.
I certainly find the assertion and contention of the appellants really strange since they are the ones who have brought this matter to court and are saying the respondents had not carried out their duties of censorship. There seems to me a memory loss on the part of the appellants as to who should prove an assertion in court. The burden of establishing this compliance or not is on the plaintiffs/appellants since they stand to lose if on completion of the case no evidence is led in proof in the discharge of this burden of proof. That is the law and it has not changed. See Uzokwe v. Delnsy Industries (Nig.) Ltd. (2002) 2 NWLR (Pt. 752) 528 at 544; Elema P. Omolade (1968) NMLR 359
The appellants, plaintiff in the court below have not established that the respondents had not carried out their responsibility or censorship as provided for by the enabling statutes and from what the respondents led in evidence and the finding of the learned trial Judge it can safely be taken that the respondents carried out their statutory duty and there is nothing to disprove same. This issue 2 is therefore resolved in favour of the respondent.
Issue Three
Whether the learned trial Judge was right when he held that the appellants did not prove that they paid any fee for the appeal lodged with the respondent, hence the respondent failed to consider the appeal.
Learned counsel for the appellant contended that the lower court was wrong in fact and in law to have held that the appellants failed to prove that they paid any fee for the appeal lodged with the respondents hence the respondent failed to consider the said appeal. He cited section 52 (1) and (2) of the National Films and Video Censors Board Act.
Mr. Keyamo stated that as a general rule, the evaluation of evidence is the primary function of the trial court and so where a trial court unquestionably appraises the facts, it is not the business of the appellate court to substitute its own view for that of the trial court but that principle of non-interference with findings of fact by a trial court applies only when the findings of the trial court is on the credibility of witnesses as only the trial court had the opportunity to see witnesses and watch their demeanor. He said that principle of non-interference with findings of fact by a lower court does not apply where the findings are based on evaluation of evidence. Also that the appellate court will also intervene where there was obvious error in the appraisal of the evidence and the ascription of probative value thereto by it or where the findings are perverse. He cited Iheanacho v. Chigere (2004) 17 NWLR (Pt. 901) 130 at 152; Atungwu v. Ochekwu (2004) 17 NWLR (Pt.901) 18 at 42 B-C; Adebayo v. Adeusi (2004) 4 NWLR (Pt. 862) 44 at 77 E-G.
Learned counsel said that since the finding of fact regarding payment of fees for the appeal is not one based on the demeanor of witness, but one based on evaluation of evidence the appeal court is urged to look at the evidence from the records. He referred to the statement of claim paragraphs 11 and 12 and paragraphs 13 and 14 of the statement of defence. He also referred to paragraph 4 and 5 of the plaintiff/appellant reply at page 22 of the records.
Mr. Keyamo stated that the burden of proof on the appellant to prove that they submitted their notice of appeal together with an original receipt can be found at pp 64 and 65 of the records and they are exhibit 4. He cited Olaiya v. Olaiya (2002) 12 NWLR (Pt. 782) 652 at 644-645.
Learned counsel for the appellant said the burden of proof shifted to the defendant/respondent who failed to carry out the responsibility of discharging that burden. He further stated that in the absence of respondent leading evidence as to its regulations made pursuant to the National Films and Video Censors Board Act requiring payment of fees for appeals to be heard, what is left with is the principal act which does not stipulate payment of fees for appeals to be heard.
Learned counsel for the respondent, Mr. Agbonifo said the condition precedent as provided in section 52 of the National Film and Video Censors Board Act of 1993 which is the payment of fees for appeal was not complied with by the appellant. He cited 52 (1) and 52(2) of the Act; Asogwa v. Abel Chukwu (2003) 4 NWLR (Pt. 811) 540 at 590 G-B. Atolagbe v. Awuni (1997) 9 NWLR (Pt. 522) 536; Adake v. Akun (2003) 14 NWLR (Pt. 840) 418; Nkwocha v. Ofurum (2002) 5 NWLR (Pt. 761) 506 at 524; section 75 of the Evidence Act, Cap. 112 LFN, 1990 as regard admission which collapses in the face of the declaratory reliefs. Also that the evidence of PW2 is not credible to establish any payment. He cited Agbi v. Ogbeh (2005) 8 NWLR (Pt. 926) 40 at 134.
That no probative value can be attached to the evidence of PW2. That the appellants are approbating and reprobating at the same time and where such inconsistency exists the court should disbelieve such party or witness. He cited Bassil v. Fajebe (2001) 6 NSCQR 269 at 282 (2001) 11 NWLR (Pt. 725) 592; Gaji v. Paye (2003) 8 NWLR (Pt. 823) 583.
Learned counsel for the respondent stated that from the totality of the evidence adduced thereof, the trial court was right in its finding that the appellants did not pay the appeal fee and the respondent was justified in not setting up a review committee in accordance with section 52(2) of the Decree. That the decision of the trial court and its findings are not perverse, there are no errors in its appraisal of the evidence before it and the ascription of probative value thereto by it. That the appellants failed in showing these to warrant the interference of the court of appeal. He relied on Oyedeji v. Akinrele (2002) 3 NWLR (Pt.755) 586 at 616-617, 619; Olunta v. Ogunowo (2004) 6 NWLR (Pt. 868) 184 at 197-198; Bayo v. Njidda (2004) 8 NWLR (Pt. 876) 544 at 612-613, 616, 624.
Mr. Agbonifo further contended that assuming without conceding that the acknowledgement by Joshua Musa amounted to admission of payment as erroneously canvassed by the appellant the trial court still reserved the power to demand that such fact be proved otherwise by such admissions under the provision to section 75 of the Evidence Act, Cap. 112, LFN, 1990.
Learned counsel said that payment for the lodgment of the notice of appeal is similar to payment of filing fee in the court registry, non-payment of which makes a suit incompetent. Also that the notice of appeal of the appellants which they left in the respondent’s office without payment is incompetent and the respondent is also incompetent to set up a review committee. He referred to Fada v. Mamman Naomi (2002) 4 NWLR (Pt. 757) 318 at 331.
That payment of the fee is a condition precedent to the competence of the respondent to act on the appellant’s notice of appeal in accordance with section 52(1) of the said Decree and the appellants failed to prove that they make any payment of the fees. He cited Seaview Investment Ltd. v. Toyin Munis (1991) 6 NWLR (Pt. 195) 67 at 88; Samamo v.Anka (2000) 1 NWLR (Pt. 640) 283 at 291.
Mr. Agbonifo submitted that the appellants not exhausting the statutory remedy provided under section 52 of the Decree before running to the court, the appellants merely tempted this court to determine that which does not belong to it but to the review committee. He cited Adesola v. Abidoye (1999) 12 SCNJ 61 at 88-89 ;(1999) 14 NWLR (Pt. 637) 28.
The learned trial Judge had held in this case before us as follows:
“The appeal therefore must first be to the board and it is only after that channel is exhausted that the court should be engaged. The plaintiff is aware of this procedure and has even submitted to the defendant the appeal but the issue of paying for the appeal was said to have stalled the consideration of the appeal. In situation such as this, it is not only desirable that where steps are taken for the entering of the appeal, all requirements for the appeal are properly entered like payment of fees under the regulations of the defendant but must be followed or pursued. The failure of the plaintiff to satisfy the requirement of payment of fees for the appeal no doubt cannot be blamed on the defendant but on the plaintiffs. I hold therefore that the failure of the plaintiff to pay for the appeal was responsible for the non-consideration of the appeal by the defendant”.
Where a plaintiff commences an action, and there is noncompliance with a stipulated pre-condition for setting the legal process in motion any suit instituted in contravention of the condition is incompetent and the court is equally incompetent to entertain the suit. Ajibola v. Sogeke (2003) 9 NWLR (Pt. 826) 494 at 533; Nnonye v. Anyichie (2000) 1 NWLR (Pt.639) 66; Mobil (Nig.) Plc v. Pam (2000) 5 NWLR (Pt. 657) 506.”
The test for determining commencement of an action both according to the English rules and local rules of court is whether the plaintiff has done all that is required of him by law to commence his action. In England, all he has to do is to buy the writ and endorse it. In Nigeria, he has to make application to the registrar and pay the necessary fees. From then on, his responsibility ceases and what is left to be done is a domestic affair of the court and its staff. From the time the plaintiff in Nigeria delivers his application to the registrar, provided it is not an action in which the consent of the court is necessary before the writ is issued, and he pays the necessary fees, it will be correct to say that an action has been commenced. Therefore, it certainly would be a matter of grave injustice to a plaintiff fees if he is deemed not to have commence his action merely because, for some reasons, it was not possible for the court or the Judge to sign the writ after the application”. Per Salami, JCA in Fada v. Naomi (2002) 4 NWLR (Pt. 757) 318 at 333-334; Saude v. Abdullahi (1989) 4 NWLR (Pt. 116) 387.
Payment of filling fees is not only a primary responsibility of the party filing a document but also a statutory prescription. Thus, the payment of filing fees is mandatory notwithstanding whether the court expressly said so or not. It is not discretionary and cannot be waived. See Fada v. Naomi (2002) 4 NWLR (pt. 757) 318 at 331; Onwugbufor v. Okoye (1996) 1 NWLR (Pt. 424) 252; Fada v. Naomi (2002) 4 NWLR (Pt. 757) 318.
Payment of prescribed filing fees is a condition precedent to a valid claim. It is the primary responsibility of the plaintiff to pay the appropriate or adequate filling fees prescribed in the rules as a condition precedent for the exercise of jurisdiction. Where such a condition is not satisfied, the jurisdiction of the court does not vest or is ousted. Failure to comply can be fatal because any suit brought in contravention of or without compliance with the rules of court on payment of filing fees is incompetent and the court is equally incompetent to entertain or hear the same. It is not a mere irregularity which is curable by a mere amendment. Neglect to pay filing fees in respect of each relief sought vitiates the claim of which no filing fees had been paid. A.C.B. Ltd v. Henshaw (1990) 1NWLR (Pt.129) 646; Oguamanam Eke v. Nzekwe Eluwa (2000) 14 NWLR (Pt. 688) 560: Seven-up Bottling Co. Ltd. v. Yahaya (2001) 4 NWLR (Pt.702) 47: Ezeani v. Okosi (1999) 3 NWLR (Pt. 596) 623.
Bearing all the principles in mind and what transpired at the court below including the evidence of the 1st appellant who testified as PW1 when she said:
“I do not know anything about the appeal my counsel made to the board:
Learned counsel for the appellants, Mr. Keyamo as PW 2 testified as follows: –
“I filed an appeal in compliance with the censors board Decree 1993. Yes, I paid for the notice of appeal. I did not buy the form; I only paid for the notice of appeal. I cannot remember how much I paid on it. The board acknowledged the receipt of the appeal”
It is clear that the finding of the learned trial Judge that the plaintiff/appellant did not fulfill the condition precedent of payment of the fees for appeal stalled the appeal and the appeal not having been taken at that board level, the appellants were not qualified to approach the court. I therefore resolve this issue 3 positively and in favour of the respondents.
Issue Four
Whether it is constitutional for the respondent to regulate home videos, as in this case, as distinct from cinematography films. Mr. Keyamo, of counsel for appellant said the court should hold that the respondent’s power to regulate home videos stated in some provisions of the National Films and Video Censors Board Act conflict with the provisions of the 1999 Constitution and to that extent the provisions of the Act are null and void to the extent of the inconsistency. That the powers of the respondent are restricted to exhibition of cinematography films and therefore the powers conferred by part VIII of the Act relating to video work is unconstitutional. He cited section 315 (1) and 39 (1) of the 1999 Constitution. He stated that section 39 (3) of the Constitution is only concerned with the exhibition of the films and not the sale and distribution to people for private viewing which would have infringed on their right to receive and impart information and ideas. That appellant’s relief 1 at the lower court only complained about the release and distribution not exhibition which is subject to control by the respondent. He cited section 45 of the Constitution. That the Act itself makes a clear distinction between video works or films and cinematography films which are not the same. He cited section 1 of the Act. Also part VII and pan VIII of the Act. That the mention of the only cinematography film in item 16 of the concurrent list is a clear indication that the lawmakers intended to exclude video films or works. That the rules of statutory interpretation are that the mention of one thing without the other must mean the exclusion of the other. He cited Registered Trustees, ECWA Church v. Ijesha (1999) 13 NWLR (Pt. 635) 368 at 375; INEC v. PDP (1999) 11 NWLR (Pt. 626) 174 at 181.
Learned counsel for the appellant said that to bring the National Video and Censors Board Act, 1993 in conformity with item 16 of the concurrent list in the 1999 Constitution as an existing law the powers conferred on the respondent regarding video film and works as distinct from cinematography films would be null and void to the extent of its inconsistency with the Constitution and the court should hold same. That this is because paragraphs 4 and 5 of the plaintiff’s statement of claim clearly stated that the res in this case is a video and not a cinematography film. That the court should hold that the decision of the respondent to exercise its powers to refuse censorship in respect of a video work is unconstitutional. That the fact that the appellant’s even submitted the tapes for censorship cannot cure the defect in the respondent’s powers as it is a matter of law not a mater of concession.
Learned counsel for the respondent stated that all the rights contained in the Constitution of 1999 are not absolute. He cited Osawe v. Registrar of Trade Unions (1985) 2 NSCC 766 at 776, (1985) 1 NWLR (Pt. 4)755, section 39, 40 of the Constitution Ekwenugo v. F.R.N. (2001) 6 NWLR (Pt. 708) 171 at 185. That for a provision of the Act to be inconsistent with the provisions of the Constitution it must be shown that there is incompatibility or contradiction which is not the case with the National Film and Video Censors Board Act, 1993 which provide in section 2 (d) that it shall be the duty of the board to regulate and control cinematographic exhibition. That this complements rather than contradict section 39 of the 1999 Constitution as it does not provide to the contrary. That it is only when provisions are in opposition that they can be said to be inconsistent and that the appellants had failed to define what cinematography film is as distinct from video films so as to show any area of conflict. He referred to Oxford Advanced Learners Dictionary Fifth edition p. 199 and section 68 of the National Films and Video Censors Board Act, 1993: Webster’s Comprehensive Dictionary of the English Language Edition, 2003; section 315 (1) (a) of the Constitution and deemed to have been made by the National Assembly; section 39, 45(1) of the 1999 Constitution.
Mr. Agbonifo said that when a right is conferred by the Constitution, that Constitution can also take it away as it had done in section 45 (1). See Musa v. INEC (2002) 11 NWLR (Pt. 778) 223 at 314 H-A; Mobil Producing (Nig.) Unlimited v. Monokpo (2001) 18 NWLR (Pt. 744) 212 on the matter of a liberal interpretation in respect to “exhibition of cinematography films” in the Constitution which is different from the restricted interpretation appellant’s counsel is pushing for. Also that the provisions of the Constitution cannot be read in isolation and so sections 39 and 45 must be read together for a better appreciation of the ends of the Constitution. That the film in dispute like all other home video films are for members of the public to view and the 1993 Act is necessary in the interest of public morality, public order and for the purpose of protecting the rights and freedom of other persons. That the criticism of the 1993 Act by the appellants’ counsel without showing any area of conflict with the Constitution is academic and must be ignored. He referred to Olafisoye v. Federal Republic (2004) 4 NWLR (Pt. 864) 580 at 657.
In effect, the appellant’s counsel is contending that the power of the respondent to censor film are not for video film and works but covered when the matter has to do with cinematography which the respondent has power over. That what is at stake in this instance is distribution or video or home video outside the ambit of powers of the respondent.
The respondent’s counsel disagrees and says what the appellant’s counsel is pushing for is a narrow interpretation of the constitutional provisions in relation to the National Film and Video Censors Board Act 1993.
Sec 39 (3) (a) of the 1999 Constitution provides as follows: –
39-(a) nothing in this section shall invalidate any law that is reasonably justifiable in a democratic society.
(a) For the purpose of preventing the disclosure of information received in confidence, maintaining the authority and independence of courts or regulating telephony, wireless broadcasting, television or the exhibition of cinematograph films.
Section 45-(1) Nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society-
(a) In the interest of defence, public safety, public order, public morality or public health; or
(b) For the purpose of protecting the rights and freedom of other persons.
Having stated those Constitutional provisions, I will restate section 2 of the National Film and Video Censors Board Act 1993.
“2 It shall be the duty of the Board:-
(a) To licence
(i) A person to exhibit films and video works,
(ii) A premises for the purposes of exhibiting films and video works;
(b) To censor films and video works;
(c) To regulate and prescribe safety precautions to be observed in licenced premises.
(d) To regulate and control cinematographic exhibitions”.
The fundamental right enshrined under section 37 of 1999 Constitution for freedom of association as trade unions was subject to the derogation set out in section 41(1) (a) of the said Constitution hence section 37 of the Constitution is not absolute as it cannot invalidate any law that is reasonably justifiable in a democratic society “in the interest of defence, public safety, public order, public morality, or public health”. See Osawe & Ors v. Registrar of Trade Unions (1985) 2 NSCC 766.(1985) 1 NWLR (Pt. 4) 755.
Section 68 of the same Act defines “film” to” include any record, however, made, of a sequence of visual images, which is a record capable of being used as a means of showing that sequence as a moving picture”. From the foregoing, the respondent is within right and empowered to regulate films, video and all related thereto and cannot therefore be fitted into this extreme thin confine that the appellant is positing. Yes is the answer to the question raised here and in favour of the respondent?
Issue five
Whether the learned trial Judge was right in ignoring the request of the plaintiffs for the record of proceedings to prepare their address and failing to explain why he did so.
Mr. Keyamo, learned counsel for the appellant said the lower court was wrong not to have released the record of proceedings to the appellants to prepare their final address despite several applications and entreaties to that effect and that was a point of appeal as it was a breach of fair hearing. He cited section 109 and 111 of the Evidence Act.
Learned counsel for the respondent said it was not part of a Judge’s judicial or administration function to give to an applicant the certified true copy of the record of proceedings as the public officer referred to in sections 111 and 112 did not refer to the Judge who is a judicial officer and not one of those referred to as public officer in those sections in Evidence Act. He cited section 318 (1) of the Constitution where judicial officer included a Judge of the Federal High Court. He cited section 59(1) of the Federal High Court Act, Cap 134, Laws of the Federation of Nigeria, 1990 and concluded that from that section of the Federal High Court Act the custodian of records of proceedings and the appropriate officer to sign and certify same as a true copy is the registrar and so appellant’s counsel was in error to have made the application to the trial Judge. He cited section 135 of the Evidence Act, Cap 112, Laws of the Federation of Nigeria, 1990, U.B.N v. Edamkue (2004) 4 NWLR (Pt. 863) 221 at 238 at 239 H-A.
What is asked for in this issue is to some extent novel. Firstly, it is to the registrar that requests for records of proceedings are made and it is when that is not forthcoming that administratively the matter is raised with the Judge and if there is a failure of the Judge to instruct the registrar to fulfill the duty of a release of the record of proceedings then recourse to the Chief Judge may be had. Furthermore, the plaintiff instituted the action in the first place, participated in the proceedings. I do not see the handicap in counsel preparing his address unless he had the record of proceedings of the court given him by the Judge. If in every case the Judge has to be involved in the release of record of proceedings before counsel can prepare their address then each case has to consume all the time of a particular Judge. For a fact what learned counsel for the appellant is asking here is preposterous and uncalled for while not being within the procedure in our adjudication. The answer is yes, that is the learned trial Judge was right in ignoring the request of the plaintiffs for the record of proceedings to prepare their address; also the learned trial Judge was right once again in not explaining why he did so.
I am satisfied from the foregoing that this appeal lacks merit and cannot stand. I dismiss it and affirm the judgment and orders of the court below.
I award N20, 000.00 costs to the respondent.
Other Citations: (2008)LCN/2625(CA)
