➥ CASE SUMMARY OF:
Mr. Jimmy S. Olaghere v Portland Paints and Products (Nig.) Ltd & Ors. (2011) – HC
by Branham Chima (SAL).
➥ COURT:
High Court – ID/853/2002
➥ JUDGEMENT DELIVERED ON:
21 June 2011
➥ AREA(S) OF LAW
Privacy;
Consent to use photograph.
➥ PRINCIPLES OF LAW
➥ LEAD JUDGEMENT DELIVERED BY:
Justice Y. O. Idowu
➥ APPEARANCES
⦿ FOR THE APPELLANT
⦿ FOR THE RESPONDENT
➥ CASE FACT/HISTORY
This suit was commenced by a writ of summons and statement of claim dated 25 March 2002. The claimant is claiming: 1. An order that the defendants withdraw or cause to be withdrawn from circulation within and outside Nigeria all the printed and distributed Sandtex 2002 calenders. Alternatively The defendants should be ordered jointly/or severally into publish a letter of apology to the plaintiff, the content of which must be approved by his solicitor in a widely circulated and read daily newspaper. 2. The payment of the sum of ₦100 million (one hundred million naira only) as aggravated and/or exemplary damages against the defendants.”
The claimant averred that on 24 January 2002, a personal friend of his called his attention to the year 2002 calendar of the 1st and 2nd defendants known and referred to as the “2002 Sandtex calendar” in which he discovered the following: That the photographs of his personal and family residence known as No. 46, Community Road, Off Allen Avenue, Ikeja, Lagos State appeared on the cover page and the 4th page comprising the months of October, November and December 2002. That “Sandtex” is a brand name of one of the products of the 1st defendant and that Sandtex is paint. That the said Sandtex Calendar 2002 is a product of both the 1st and 2nd defendants as their names appeared on it. That the Sandtex Calendar 2002 is to advertise the primary business of the 1st and 2nd defendants to the whole world. It was the averment of the claimant that by his letter dated 24 January 2002 protested to the Managing Director, Portland Paints and Products (Nig.) Ltd, the use of the photograph of his personal and family house in the Sandtex Calendar 2002, but that rather than meet the request of the claimant in the said letter, the 1st defendant’s general manager admitted the unauthorized usage of the said photographs in his letter dated 29 January 2002. It was also averred that he did not expressly or impliedly instruct the defendants by themselves, jointly or severally or anyone, agent or privy acting for the defendants jointly or severally to take and/or use the photograph of his residence for any purpose and/or for the publication of same in any book, magazine or calendar at all.
The defendants filed their own statement of defence on 19 November 2002 wherein it was averred that by their letter dated 29 January 2002, the claimant was informed that the paid calendars were produced by an independent contractor who in turn provided an indemnity to the defendants. It was also averred that no copyright attached to the said photographs and that in any event, the property in issue is ordinarily available for sighting and admiration by the public generally with liberty for such admirers to make enquires on same. The defendants averred that they are not engaged in the business of photography or advertisers for reward or at all but are manufacturers of paints, allied products, renovations and constructions only and also that they took no step in procuring the said photographs, neither did they take any steps to associate the photographs with the claimants nor disclosed the whereabouts of the said property to anyone or the identity of its alleged owners.
➥ ISSUE(S) & RESOLUTION(S)
[CLAIM ALLOWED]
I. Whether the claim, vis-a-vis the reliefs, are established and proved therefore on the face of the claim against the defendant?
RULING: IN CLAIMANT’S FAVOUR.
A. THE DEFENDANTS ARE THE PROPER PARTIES SUED
“It has also emerged that the defendants authorized Words and Pictures Ltd to source for pictures and so it is not surprising that exhibit C1 was addressed to Words and Pictures Ltd and could not have been to the defendants. It is trite that for an action to be properly constituted so as to vest jurisdiction in the court, there must be proper parties. See the case of Green v. Green (1989 3 NWLR (Pt. 61) 480. I therefore hold that the defendants are the proper, necessary and desirable parties to this suit. The defendants are the ones who gave a job to Words and Pictures as their contractor to source for pictures and of consequence, the OPC photographers. There is nothing before the court that Words and Pictures Ltd as an independent contractor acted outside the scope of the authority given it by the defendant. An agent acting on behalf of a known and disclosed principal bears no liability. The act of the agent is the act of the principal. It is trite that he who does an acts through another is deemed in law to do it himself.”
B. THE RIGHT TO PRIVACY OF THE CLAIMANT WAS INFRINGED
“The view of Fatai Williams, JSC, in the case ACB Ltd v. Walt Sallo (1975) 5 SC 89 at 100, is classical in that the rights of the plaintiff and the defendant are determined without reference to the defendant’s claim against the third party. It cannot be that the defendant’s contention that Niyi Osidele ought to have been made a defendant by the plaintiff is correct. The claimant has shown by his evidence and that of the witnesses that he has been embarrassed and sustained injury to himself by the action of the defendant. There is no doubt that the constitutional rights of the claimant has been invaded contrary to section 37 of the Constitution of the Federal Republic of Nigeria, 1999. Section 37. “The privacy of citizens, their homes, correspondence, telephone conversation and telegraphic communications is hereby guaranteed and protected.” Of relevance also is section 34(1) of the Constitution of the Federal Republic of Nigeria, 1999. The applicant has a right to be protected against intrusion to his personal life and that of his family.”
C. THE CONSENT OF THE CLAIMANT WAS NOT SOUGHT BEFORE HIS HOUSE WAS USED
“It has emerged that the consent or authority of the claimant was not sought for and obtained before the picture of his house was used in the 2002 Sandtex Calendar, The defendant has not denied that the picture is not the house of the claimant. It has also emerged from the evidence before the court that the claimant protested personally and through his solicitor to the use of the picture of his house without his consent. I am of the humble opinion that the defendant had any respect for a citizens privacy, they ought to have retracted and even they were not aware of the consequences or acting under a misrepresentation ought to have recalled the calendars rather than hide under the indemnity clause where the 2nd defendant was indemnified. The claimant did not have the consent to the use of the photograph of his house, the use of the photograph on Sandtex Calendar cannot but be a breach of his privacy. The fact that the calendars were not used for profit making is of no consequence. It makes it more unfortunate that the defendant is a company associated with paint used for houses and the like. The impression being created is that the claimant used Sandtex paint produced by the defendant for his house and could be further interpreted that the claimant was advertising for the defendant. This is quite apart from people reading other meanings into it.”
“This has no doubt and I do agree with the claimant’s counsel that the publicity has placed the claimant in false light intrusion upon the claimant’s seclusion or solitude, appropriation of the claimant’s name or likeness and public disclosureof private facts about the claimant: Cals Review of Nigerian Law and Practise, Vol. 1 (1) 2007 at 65.”
“Every citizen is entitled and jealously guided to his privacy which cannot be invaded at will, to do so is highly offensive and a serious breach. The claimant has said that it is his private house where he stays with his family. To all intents and purposes, the claimant’s privacy was invaded by the defendants by the publication obviously to the advantage and popularity of the defendant of the photograph of the claimant’s private house in the 2002 Sandtex Calendars without the claimant’s consent. There is nothing before the court to show that OPC photographs got the consent of the claimant to use his house on the calendar.”
.
.
.
✓ DECISION:
“From the available evidence before the court, the defendants have not shown anywhere where the claimant authorised them or the OPC photographer or through Niyi Osidele to use the picture of his house on the Sandtex Calendar. The evidence of the claimant is quite credible and straightforward and has adequately proved his case on the preponderance of evidence supported by exhibits … I will therefore consider alternatively reliefs (b) and (c). I hold that the claim succeeds. I give judgment for the claimant. The defendant is ordered to jointly/or severally publish a letter of apology to the claimant in a widely circulated daily read newspaper. The said newspaper is to be agreed upon by both counsel. The defendant is also ordered to pay the sum of ₦50,000,000.00 (fifty million naira) as exemplary damages to the claimant. These two orders are to be carried out within 21 days from today.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
Sections 34(1), 37 Constitution of the Federal Republic of Nigeria 1999 (as amended).
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)