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Microsoft Corporation v. Franike Associates Ltd.

Court of Appeal

Judgement delivered on Thursday, July 14, 2011
Citation: 54 NIPJD [CA. 2011] 573/2008
Suit No. CA/L/573/2008       Jurisdiction: Nigeria


RITA NOSAKHARE PEMU, J.C.A. (Delivering the Lead Judgement)


This is an Appeal against the ruling of the Honourable Justice S.I. Shuiabu of the Federal High Court, Lagos Division in Suit No.FHC/L/CS/610/05 delivered on the 7th of June 2006, striking out the entire suit on the ground that the court lacked the jurisdiction to entertain and determine the Plaintiff’s claim. The Plaintiff/ (now Appellant) claims against the Respondent (now Defendant).

The circumstances necessitating this Appeal can be aptly put as follows:

By Writ of Summons dated 23rd June 2005, the Appellant initiated a suit against the Respondent at the Federal High Court, Lagos, which Writ of Summons was filed along with a motion ex- parte as well as a Motion on Notice. A Statement of Claim was also filed on that date; and in its paragraph 27, the Plaintiff (now Appellant) had sought the following reliefs inter alia:

(i) A DECLARATION that the Plaintiff as owner of the copyright stated herein is the only person (either by itself or by its licences and or agents) authorized by law to exercise copyright on the wide range of Microsoft Software, Programs and Products.

(ii) A DECLARATION that the Defendants by its/their acts complained herein have infringed the copyright of the Plaintiff in the Microsoft Software, Programs and Products copies into the hardware they offered for sale to the public.

(iii) A PERPETUAL INJUNCTION restating the Defendant ‘ and all those on whose behalf they are sued, whether acting by themselves, their directors, officers, servants, agents / or privies or otherwise or howsoever from doing the following acts or any of them, that is to say:

(a) Selling by way of trade, expressing or offering for sale or distributing for the purposes of trade without licence of the plaintiff any copies of the said Microsoft and or windows software or any reproductions of the Plaintiffs said software, Programs or product and from authorizing any of the acts aforesaid.
(b) Converting to their own use infringed copies of the Plaintiff’s software, programs and or products.
(c) Installing or loading unto any hardware, hard disc/DVD or otherwise infringing by any other means howsoever or causing enabling and otherwise assisting howsoever others to infringe the
Plaintiff’s copyright Microsoft software programs and or products.

Further and other reliefs as this Honourable Court may grant in the circumstances (pages 1-3 of the Record of Appeal.)

The Writ of Summons in the main was for a restraining order that the Respondents, their servants, agents, privies or otherwise whosoever stop infringing the Appellant’s copyright in its software programs and products particularly the “WINDOWS” operating system / software for computers. Pages 12-24 of the Record of Appeal shows that an ex-parte application as well as a motion on notice were filed simultaneously and both applications dated 23rd June 2005 sought several orders, but principally to restrain the Respondents, their servants, agents and privies or otherwise whosoever from infringing the Appellant’s copyright. On the 4TH of July 2005, the Federal High Court granted all the orders sought on the motion ex-parte – page 75 of the Record of Appeal. The Respondents subsequently filed a motion on notice dated 20th July 2005 (at pages 46-53 of the Record of Appeal) seeking various orders, one of which was for an order striking out the suit for lack of jurisdiction, and for an order vacating and / or discharged the ex-parte orders of the Court made on the 8th of July 2005 – pages 46-53 of the Record of Appeal. The applications were taken on the 16th of February 2006 and on the 7th of June 2006, the Court discharged its ex-parte orders made on the 4th of July 2005 and struck out the entire suit on the Grounds that the Federal High Court lacked jurisdiction to entertain the Appellant’s claims – pages 84-100 of the Record of Appeal.

Dissatisfied with this Ruling, the Appellants have now approached this Court appealing the said Ruling and that same should be set aside.

The Ruling is at pages 94-100 of the Record of Appeal.

In line with the practice Directions of this Honourable court, the Appellant filed its Notice of Appeal dated 21st of June 2006 and filed on same date. Pages 101-107 of the Record of Appeal.

The Notice of Appeal encapsulates four (4) Grounds of Appeal.

In his amended Brief of Argument filed on the 12th of February 2011, the Appellant had distilled just one issue for determination. I shall come to that later on in this judgment.

The Appellant, had, in the course of prosecuting this Appeal filed several applications.

An application filed on the 15th of February 2010 for an order granting leave to the Appellant/Applicant to amend its Brief of Argument was granted on the 27th of May 2010 by this Honourable court with a deeming order. An amended Appellant’s Brief of Argument was filed on 12th of February 2011, after an application to substitute in amended Appellants Brief of Argument dated 15th January 2011 with that filed on the 17th of January 2011 was granted. Same was deemed filed on the 27th of January 2011.

This is sequel to the grant to the Appellant, of an order, to amend its Brief of Argument, filed on the 12th of January 2010 which application was struck out on the 27th of May 2010.

In the course of writing this Judgment, I observed that the order granted by the lower court in respect of the motion ex-parte dated 23rd June 2005 was not included in the Record of Appeal.

Learned counsel for both parties were then invited to address this Honourable Court on this lacuna, and on the 14th of June 2011, T. Oshodi Esq. for the Appellant, moved his motion filed on the 10th of June 2010 for an order granting the Appellant/Applicant leave to compile and file supplementary Records of Appeal and to deem the said Ruling ex-parte of the lower court of 23rd June 2005 as part of the Record of Appeal in this appeal.

This application was granted on the 14th of June 2011, and the said supplementary record Exhibit “YB1”, was deemed part of the record on that date.

On their part, the Respondent filed its amended Brief of Argument on the 20th of January 2011, having earlier filed various Briefs of Argument.

The Appellant filed a reply brief on points of law on the 21st of January 2011 to the Respondent’s amended Brief of Argument.

As earlier observed the Appellant in his amended Brief of Argument filed on the 12th of January 2011 raised just one issue for determination: It is

“Whether the learned trial judge was right in entertaining the Respondents’ objection to the jurisdiction of the Federal High Court and consequently striking out the suit on the Ground of lack of proof of reciprocal protection of copyright laws between Nigeria and the United States of America.”

In the Respondent’s Amended Brief of Argument, filed on the 20th of January 2011, he had raised two issues for determination and they are:

(1) Whether the learned trial judge was right to have declined jurisdiction having regard to Section 251 (1)(f) and Section  12 (1) of the 1999 Constitution of the Federal Republic of Nigeria, section 5(1) (b) and 41 of the copyright Act Cap C28 Laws of the Federation of Nigeria, 2004.

(2) Whether the filing of a preliminary objection by the Respondent at the lower court challenging the Courts’ jurisdiction without filing a defence amounted to a demurer.

Let me quickly say here that the Appellant in the course of the filing of this Appeal had on the 14th of May 2010 filed a Notice of Change of Counsel from Festus Keyamo of Festus Keyamo Chambers to Anthony Omaghomi of George Etomi and partners.

I deem it pertinent, to reproduce the Grounds of Appeal shorn of its particulars filed by the Appellant for a proper appreciation of the issues in this Appeal.

“The Honourable trial judge erred in law when he held that it has no jurisdiction to entertain the suit of the Appellant herein contrary to the clear provisions of sections 1, 5, 42, 49, and 57 of the copyright Act, CAP C28 Laws of the Federation of Nigeria 2004.”

Ground 2
“The Honourable trial Judge erred in Law when he held that the objection to the jurisdiction of the lower court to entertain the suit raised by the Respondent herein is competent.”

Ground 3
“The Honourable trial judge misdirected himself in law when he placed reliance on section 33 of the Copyrght Act, CAP 68, Laws of the Federation of Nigeria 1990 (now section 41, of the copyright Act, CAP on, Laws of the Federation of Nigeria 2004) to hold that it lacked jurisdiction to entertain the suit.”

Ground 4
“The Honourable trial judge erred in law when he failed to consider the provisions of the copyright (Amended) Decree No. 42 of 1999 in applying, considering and or interpreting the provisions of the Copyright Act, CAP D8 Laws of the Federation of Nigeria, 1990.

It is trite that when no issue is formulated from a Ground, it is deemed abandoned and liable to be struck out. RASHEED OLAIYA V. THE STATE (2010) 2 SCM 763 AT 769-770; BAKER V. LAGOS STATE CIVIL SERVICE COMMISSION (1992) 8 NWLR pt, 262, 64I; LABIYI V. ANRETIOLA (1992) 8 NWLR pt.258 at 139.

Therefore where a Ground is abandoned it is liable to be ignored and discountenance and to be struck out. E.B. UKIRI V. GECO PRAKA (NIG) LTD (2070) 76 NWLR pt. 1220 544 at 565.

The Appellant had not in his brief said whether his sole issue is tied to this Grounds of Appeal, but at page 4 of the Respondents, amended brief of argument filed on the 20th of January 2011, learned counsel had in arguing Issue No. L on behalf of the Respondent submitted that Issue No. 1 is distilled from Grounds 1, 3 and 4 of the Appellants’ Notice of Appeal while at page 9 of his amended brief, in arguing Issue No. 2, he submitted that Issue No. 2 is distilled from Ground 2 of the Appellant’s Notice of Appeal.

Let me take the view that the Appellant’s sole issue for determination is tied to the four Grounds of Appeal, as I find that they do.

In my view, the issues for determination in this matter can aptly be three. They are:

(1) “Whether the learned trial Judge was right in entertaining the objection to jurisdiction of the Federal High Court as he did.-

(2) “whether the filing of a Notice of preliminary objection by the Respondent amounted to DEMURER- and

(3) “Whether the provisions of the Copyright Amended Decree No. 42 of 1999 and any other relevant provisions of the copyright Act for that matter is applicable to this case.”

The law is settled, and indeed the corpus of legal authorities point to the fact that jurisdiction is assumed where inter alia:
(a) the person bringing the action is properly before the Court and
(b) the subject matter of the action is properly before the Court.

These are only properly before the Court when by the enabling statute or by its inherent jurisdiction, the Court can exercise jurisdiction over the parties.

It is the claim of the Plaintiff and not the defence that determines jurisdiction. See ONUORAH V. KADUNA REFINERY & PETROLEUM CO. LTD. (2005) 6. NWLR Pt. 921 at Page 393 at 904; UBA PLC V. BTL IND. LTD (2006) 12. SCN Part 2394 at Pages419-420; BALOGUN & ORS V. SHIFAWU ODE & ors. 2007, NWLR Pt.1023 at Page 1 at 14; TUJUR V. GOV. OF GONGOLA STATE 1989. 4 NWLR Pt. 117, 1989 SCNJ 1; SENATE PRESIDENT V. NZERIBE 2004. 42 WRN 39 AT 60; ALPHONSUS NK UMA V. JOSEPH .O. ODILI 2006. 4SCN 127 at 143; OBA AREMO II V. ADEKANYE 7 2 ORS 2004. 8 SMG. 2004.

Having said this, it is necessary to look at the Statement of Claim of the Appellant as gleaned from pages 4-9 of the Record of Appeal. The matter came before the Federal High Court Lagos Division.

Section 251 (1) (0 of the Constitution of the Federal Republic of Nigeria 1999 is apt. It says:-
“Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters.

In the proviso, it says:-
“Provided that this paragraph shall not apply to any dispute between an individual customer and his bank in respect of transactions between the individual customer and the bank.”
(f) “Any Federal enactment relating to copyright patent, designs, trademarks and passing-off, industrial designs and merchandise marks, banners names, commercial and industrial monopolies, combines and trusts, standards of goods and commodities and industrial standards;………..”(Underlined for emphasis)

Therefore it is trite to say that the Federal High Court has jurisdiction when it comes to the issue of any Federal Enactment relating to copyright, patent designs, trademarks……..

The word ‘ENACTMENT”, according to the Blacks Law Dictionary Eight Edition at page 567 means:

“The action or process of making into law……..enactment of a legislative bill; a statute.”
A cursory look at the Statement of Claim shows that it all borders on allegation of the Defendants’ infringement of the Plaintiff’s copyright.

The learned trial judge, in my view was right in entertaining the Application ex-parte, objecting to the jurisdiction of the Federal High Court. The motion ex-parte is at pages 12-22 of the Record of Appeal. By virtue of Section 251 (1)  of the Constitution of the Federal Republic of Nigeria 1999, it brought the subject matter of this case within the jurisdiction of the Federal High Court.

On what Grounds did he strike out the suit?

Learned counsel for the Appellant C.F. Agbu Esq. had pointed that he did so on the ground of lack of proof of reciprocal protection of Copyright Laws between Nigeria and the United State of America.

The Ruling is at Pages 84-100 of the Record of Appeal in relation to, inter-alia an order to vacate and/or discharge the ex-parte order granted on the 8th of July 2005 in favour of the plaintiff.

A careful perusal of the judgment shows that the learned trial Judge’s stand is that it had jurisdiction to entertain the matter, by virtue of Section 251(f) of the 1999 Constitution.

At pages 13-14 of the Ruling – pages 96-97 of the Record of Appeal, he had this to say inter alia
“……. ..I have already set out the Grounds upon which the Defendant is challenging the competence of the action and the jurisdiction of this court. The Defendants’ main contention respecting issue of jurisdiction is that having registered the copyright in USA, its application has to be extended by a Minister in the Federal Gazette which has not been done. On behalf of the plaintiff it was contended that a foreign company can assert its copyright in Nigeria by virtue of section 15 and 16 of the Copyright Act, And that the question as to the requirements of gazeting the contention is a matter of evidence at trial, it is imperative to note that the subject matter allegedly infringed is a software for computer popularly known as “Window”. By virtue of Section 7(a) of the Copyright Act, a literary work is eligible for copyright. And subsection (2) of the Act specifically provides:-

Furthermore section 39(1) (d) of the said copyright Act cap 68 LFN 1990 defines “Literary work’ to include computer Programmes. Thus; the work; subject matter of the material from and/or making any adaptation of the work. It is also not in doubt that the court is pursuant to section 251(1) (f) of the 1999 constitution of the Federal Republic of Nigeria and section 15 of the copyright Act invested with jurisdiction to entertain any action for infringement of copyright at the suit of the owner; assignee or exclusive licensee, And by the cumulative averments in paragraphs 4-8 of the Plaintiff s supporting affidavit, it emphatically averred that the Plaintiff is the owner of several software programs particularly the popular “windows” operating system/software computers; the ownership of which is no where controverted or denied by the Defendant. The only area of disagreement is the extent of the application of this copyright same having been registered in the United States of America. Unlike in Trade Mark; the jurisdiction of this Court is not dependent on registration, on effect there is no provision of registration of a Copyright under the Act, But what the Copyright Act did is the establishment of the Nigeria Copyright Council under Section 30 and charge the Council with inter-alia the responsibility of monitoring and supervising Nigeria’s position in relation to International Convention and advising the Government thereon………..

Page 16 of the Judgment of the learned trial judge is instructive, in declining jurisdiction over the subject matter. (Page 99 of the Record of Appeal). He observed thus:-

“The averments in paragraph I of the plaintiffs Statement of Claim and paragraph 4 of the Plaintiff/Applicant’s supporting affidavit leave no one in doubt that the plaintiff/applicant company is a reputable software Company registered according to American Laws with its Head office situated at 7 Microsoft Drive; Redmond; :Washington D.C; united state of American. That being the……..the application of the said foreign copyright in Nigeria is subject to a reciprocal extension of protection in accordance with section 33 of the copyright Act. And in the absence of which this court will not in my view, exercise the requisite jurisdiction over the matter.

This is premised on the fact that the exclusive jurisdiction of this Court pursuant to Section 251(1)(f) of the 1999 Constitution is only limited to the listed Federal Enactments and does not extend beyond copyright etc. other than those listed therein, In the instant case, the copyright sought to be protected a)as established pursuant to law other than the Federal Enactments listed in Section 251(1)(f) of the 1999 Constitution. There is also nothing before the Court to show that there is any reciprocal extension of protection of the Copyright in question……………..”

The learned trial judge at page 17 of the judgment – Page 100 of the Record of Appeal concluded thus:-

“Thus it is my view that the procedure adopted by the Defendant is preferably in order. An on the strength of the above; the Ex-parte Order of 9th July, 2005 was made without jurisdiction and is accordingly set aside. The Entire Suit is struck out of the ground of lack of jurisdiction by this Court.”

It is evident that “subject matter” jurisdiction is what the Court based on and not “legal standing.”

An application to set aside an order made ex-parte does not amount to DEMURER neither does a party filing a Preliminary Objection only with no Statement of Defence, amount to DEMURER.

Jurisdiction of a validly constituted court connotes the limits which are imposed upon its powers to hear and determine issues between persons seeking to avail themselves of its process by reference to (1) the subject matter of the issue or

(2) the persons between whom the issue is joined or

(3) the kind of relief sought or to any combination of these factors.

The Respondent has argued (rightly in my view) that there is nothing from the records of the Court to show any certificate which was either Presented to or exhibited by the Appellant. Nor was any certificate pleaded to show that a certificate must be presented from the Nigeria Copyright Commission (as required by Section 5(2) of the Copyright Act) for the Purpose of conferring it with the status of eligibility. Therefore learned counsel for the Respondent A.T. Omaghomi Esq. contends that failure on the part of the Appellant to show proof of the existence of such certificate clearly robbed the lower court of the jurisdiction to entertain the matter.

He argues that by virtue of Section 41(3) of the Copyright Act, the Minister can only order extension to the Appellant through a Federal Gazette as required by section 41, of the copyright Act which has not been done in this case. He argues that under Section 113 of the Evidence Act 1990, all official Communications of the Government of the Federation and of a State may be proved by the production of such Gazette. All that the Appellant needed to do was to bring before the Court a copy of the Federal Gazette, if indeed it exists.

The law is elementary that in granting ex-parte applications for Injunction all the Facts must be laid before the Court and nothing suppressed,

It therefore becomes necessary, indeed imperative for the necessary “extension” to be extended to the Appellant via a Federal Gazette. In the absence of this, the learned trial judge was wrong in entertaining the matter and ip so facto Shuaibu I was right in discharging the order of  injunction made ex-parte and dismissing the entire suit for want of jurisdiction as he did. Issue No. 1 is therefore answered in the affirmative and same is hereby resolved in favour of the Respondent.

The filing of a Preliminary Objection by the Respondent at the lower court challenging the Courts’ jurisdiction without filing a defence does not amount to a demurrer.

In NDIC V. CBN (2002), 7 NWLR Pt.766 page 272 at 297 paragraph a-f, it was held inter alia that:

“There is a distinction between objection to jurisdiction and demurer. It is misleading to equate demurrer with objection to jurisdiction….”SEE USMAN V. BABA (2005) 5 NWLR Pt. 977 Page 775 at 773 paragraph d-g; NDIC V. CBN (2002) 7 NWLR Pt.766 Page 272 at 297.

In putting forward a Preliminary Objection it can be done in limine, particularly when it has to do with the issue of jurisdiction. No Statement of Defence need be filed. It can even be raised SUO MOTU by the Court. But in demurer Proceedings which invariably has been abolished in the High Court, there must be pleadings. The issue of jurisdiction does not require or depend as such on what a Plaintiff may plead as facts to prove the reliefs he seeks. JURISDICTION is fundamental to any action. It is the SPRINGBOARD of which an action bounces forward in the positive or bounces backward in the negative.

It is the visa that enables a Court to be empowered to entertain the subject matter before it.

The argument that the Preliminary objection amounts to demurrer is therefore misconceived and same is hereby discountenanced.

The result is that this Honourable court finds no reason to interfere with the Ruling of Honourable Justice M.L. Shuaibu delivered on the 7th of June 2006 at the Federal High court, Lagos discharging the orders made ex-Parte and dismissing the entire suit on the ground that the court lacked the jurisdiction to entertain and determine the plaintiff’s Respondent claims against the Respondent.

The result is that the Appeal lacks merit, while the Ruling of the learned trial Judge, Honourable Justice M.L. Shuaibu made on the 7th of June 2006 is hereby affirmed; with N30, 000.00 costs in favour of the Respondent.

OLUKAYODE ARIWOOLA, J.C.A: I had the privilege of reading the draft of the lead Judgment of my learned brother, R. N. PEMU, JCA. I agree with the reasoning and the conclusion arrived thereat.

I abide by the consequential orders in the said lead Judgment including the order on costs.

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A: My learned brother Pemu, JCA, had obliged me with the draft of the lead judgment just delivered. I had read, before now, the briefs of argument of the learned counsel to the respective parties and the record of appeal, as a whole. The reasoning and conclusion reached in the lead judgment accord with mine.

Hence, having adopted the reasoning and conclusion reached in the lead judgment as mine, I too hereby hold that the appeal lacks merits, and is dismissed by me. I accordingly affirm the ruling of the lower court, dated June 7, 2006. I also abide by the consequential order awarding N130, 000 as costs, in favour of the Respondent.

Appearances: C.F. AGBU (with P.C. ACHUNINE & M. LAWAL) for the Appellant

                        A.T OMAGHOMI (with T. YERI) for the Respondent