Musical Copyright Society Nigeria v. Details Nigeria Limited
Federal High Court
Ruling delivered on Wednesday, July 31,1996
Citation: 39 NIPJD [FHC. 1996] 434/1995
Suit No. FHC/L/CS/434/95 Jurisdiction: Nigeria
Ruling delivered by Honourable Justice T.A. Odunowo
MUSICAL COPYRIGHT SOCIETY NIGERIA LIMITED BY GUARANTEE
DETAILS NIGERIA LIMITED
Ruling: Any association without a collecting society’s license is in breach of the provision of Section 32B(2) of the Nigerian Copyright Act and as a result lacks the locus standi to maintain a court action.
On 8 May 1995, I made an order for inspection and copying, inter alia, of documents having any bearing to details of broadcast by the defendant following an ex parte motion for an Anton Pillar Order by the plaintiff on 24 April 1995. The defendant has now filed a notice of preliminary objection to have the said order discharged on the grounds that it was fraudulently obtained by the Plaintiff as relevant facts were not disclosed to the court before the order was granted. An additional reason for seeking dismissal of the suit is that the Plaintiff has no locus standi to institute this action. The application is supported by a four paragraph affidavit sworn by one Tunde Adefenwa, a litigation officer in the chambers of the applicant’s Solicitors, Ogunsanya & Co. This was fortified by a further and better affidavit of seven paragraphs which was deposed to by Mr. Friday Omayebu, a legal practitioner.
The Plaintiff filed a seventeen paragraph counter affidavit which was sworn by Mr. Louis Udoh, licensing manager of the plaintiff company, to show that no fraud was perpetrated before the order was secured and that the Plaintiff possesses locus standi being the owner, assignee and exclusive licensee of copyright in musical works within Nigeria and was duly incorporated in 1984 and limited by guarantee under the Companies and Allied Matters Act (CAMA) 1990. This was followed by a further counter affidavit of five paragraphs both sworn by the same deponent, Mr. Louis Udoh.
In moving the application Mr. A. Ogunsanya, learned counsel to the applicant, submitted that if an application is brought under the provision of a statute the provision cannot be read in isolation. In this instance the ex parte application was brought under the Copyright Decree 1988 (as amended) without reference to other provisions of the Decree – most especially section 30 thereof and section 32 (a) and (b) of the 1992 amendment. The plaintiff came to court without making that full disclosure, i.e. they have not taken account of the statute: Ogbo v. Adoga (1994)3 NWLR (Pt. 333)469 at page 472. They came under section 22 of the Copyright Decree 1988 in isolation of the statutory provisions to which reference has already been made. He submitted that the Anton Pillar Order has been overtaken by events and ought to be discharged by this court as the essential purpose has been defeated. This is so because the order has not been executed; rather they have resorted to advertising it in the Sunday Times to the embarrassment of the defendant. If they represent over two (2) million artistes then the plaintiff is acting as a Collecting Society. Otherwise they should have sued the infringer individually if their claim is well-founded. He point out that the plaintiff has admitted in paragraph 11 of their counter affidavit that they would be satisfied if the defendant gave them whatever document they require. This is an admission that the Anton Pillar Order was unnecessary. The defendant has a monthly guide which is printed in advance and distributed free of charge; they also advertise their programme schedule in the newspapers everyday. If the plaintiff had come by way of discovery the defendant could have given them any document of their choice since they have nothing to hide.
On the second leg of the application I was referred to the book, Modern Law of Copyright and Designs (2nd edition) by Laddie, Prescott and Victoria volume 1 at page 8 and 9, paragraphs 1.14 and 1.15 to show that in whatever guise or form under which the plaintiff approached the court they are intending to perform the role of a Collecting Society, e.g. the particulars of claim alleging a repertoire of two (2) Million works. The plaintiff also said they had given repeated warnings and that they intend to give the defendant a license i.e. to pay and subscribe to their association. Furthermore, the plaintiff has a reciprocal arrangement with other musical societies abroad. The defendant only pays royalty to a Collecting Society, not just any group.
Having regard to paragraph 8 of the further counter affidavit it is quite clear that the plaintiff is a Collecting Society. He submitted that if the plaintiff has not been duly recognised by the appropriate body, i.e. the Nigerian Copyright Council which has now been upgraded to the status of the Nigerian Copyright Commission (NCC) they cannot do what they have purported to do.
My attention was drawn to the several exhibits attached to the further counter affidavit, especially Exhibit A which is a copy of the pending motion on notice before Belgore CJ. This document constitutes an admission that their business cannot be carried out lawfully without that approval: Owner of M/V Baco Liner 3 v. Adeniji (1993)2 NWLR (Pt. 274)195. As they have not been duly registered the plaintiff cannot act as a Collecting Society. I was referred to these additional cases: (1) CBN v Kotoye (1994)3 NWLR (Pt. 330)66 at pages 68 (2) Adesokan v. Adetunji (1994)5 NWLR (Pt. 346)540 at pages 545 to 546. (3) Veritas Insurance Co. Ltd. v. City Trust Investments Ltd. (1993)3 NWLR (pt. 281)349 at page 352 and (4) Ekechi v. Okah (1993)1 NWLR (Pt. 267)34 at page 39. He submitted that the plaintiff has not complied with the necessary laws that can enable them perform as a Collecting Society. It is therefore unlawful for them to act as such. In conclusion Mr. Ogunsanya urged me to grant the application.
In opposing the present application Mr. K.G.B. Oguakwa, learned counsel to the plaintiff, submitted that in determining the issue of locus standi the court has to look at the cause of action and the facts of the case since locus standi is determined by the plaintiff’s demand and not by the defendant’s reply. He referred me to these cases: (1) Re Ijelu (1992)9 NWLR (Pt. 266)414. (2) Thomas v. Olufosoye (1986)1 NWLR (Pt. 18)669 and (3) Oloriode v. Oyebi (1984)1 SCNLR 390. Based on these authorities, this court can look only at the particulars of claim, the motion ex parte and the affidavit in support in order to determine the issue of locus standi.
It is settled that for a person to have locus standi he must be able to show that he has sufficient interest which is not vague and speculative, and must able in a position to establish that such an interest has been adversely affected by the act or omission of the defendant. Paragraph 2,3, E, F to F2 and G annexed thereto clearly show that the plaintiff is suing in the capacity of owner, assignee and exclusive licenses of the various copyrights in musical works belonging to its repertoire which constitute the cause of action as contained in the particulars of claim: FAwehinmi v. Akilu (1987)4 NWLR (Pt. 67)677 and Ezekwe & Others v. Nnadozie (1953)14 WACA 361. He contended that section 15 of the Copyright Decree 1988 (as amended) is the only section dealing with capacity to sue. The section gives the right to sue to an owner, assignee and exclusive licensee whenever in infringement of Mohammed J (as he then was) in the case of E.C.W.A. Productions Ltd. v. Akando & Anor (FHC/PH/19/85 which was delivered on 31 July 1986. Based on the fundamental principles relating to freedom of contract as well as sanctity of contract together with the provisions of section 10 of the Copyright Decree 1988 which governs the transmission and ownership of copyrights he submitted that the plaintiff has established that it is the owner, assignee and exclusive licensee of musical works covered under the agreements and exhibits already referred to: Marina Nominees Ltd. v. F.B. I.R. (1986)2 NWLR (Pt. 20) 48 and Adenuga v. Ilesanmi Press Ltd. (1991)5 NWLR (Pt.189)82.
He contended that copyright subsists in the musical works covered in, for example, Exhibit J which contains the deed of assignment of Rexton Gordon popularly known as Shabba Ranks, because of Nigeria’s endorsement by ratification of the Universal Copyright Convention (UCC)1952 and the Berne Convention (BC)1993. Under the UCC the Hon. Minister for Culture made the copyright (Reciprocal Extension) Order 1971 which is still subsisting by virtue of section 40 (3) of the Copyright Act 1988 (vide section 2 and 33 thereof). I was referred to an unreported judgment of the Court of Appeal which was delivered on 15 March 1984 in the case of Visco v. Arewa Textiles Ltd. (FCA/K/55/83 and two unreported decisions of this court in the case of Liberty Records Incorporated & Another v. M.Y. Owotutu (FHC/L/116/86 delivered on 10 March 1990 and Island Records Incorporated & Another v. R.A. Abusi Oluwa Trading Stores (FCH/1/115/86) which was delivered on 3o March 1994. Since it is established that copyright subsists in the plaintiff’s repertoire and that by virtue of sections 10 and 15 of the Copyright Decree 1988 (as amended) whenever an infringement occurs this plaintiff has locus standi to sue.
If the words of a status are plain they should be given their natural meaning. In such a situation there is no room for applying any of the principles of interpretation which are merely presumption in cases of ambiguity in the statute: Croxford v Universal Insurance Co. (1936)2 K.B. 253 at page 281 and Ogbo v. Adga (1994)3 NWLR (Pt. 333)469 at page 472. He submitted that this court has on various occasions held that this plaintiff has locus standi to sue, e.g. Musical Copyright Society of Nigeria v. Nigerian Hotels Ltd. (Suit No. FHC/L/43/89 and an unreported ruling of Tofowomo J (as he then was) which was delivered on 26th March; Musical Copyright Society of Nigeria v D.P. Lekki Ltd. (Suit No. FHC/L/168/90 delivered by Jinadu J on 5 July 1991 and Musical Society of Nigeria v. Nigeria Hotels Ltd. (Suit No. FHC/L/43/89) delivered on 15th May 1992 which confirmed the locus standi of the plaintiff to sue as an owner, assignee and exclusive licensee under section 15 of the Copyright Decree 1988 with regard to its repertoire.
Every clause of a statue should be construed with reference to the context and other sections of the statute so as to make a coherent interpretation of the whole enactment relating to the subject matter. Consideration of sections 2,5,9,19,14,15,30,32 (a) & (b), 33 and 40 (3) of the copyright Decree 1988 (as amended) will show that there is no conflict as between section 15 on the one hand and section 30 (b) on the other. Whereas section 15 confers upon an owner, assignee and exclusive licensee the right to institute an action for any infringement of their copyright section 32(b) promulgates modalities for setting up collective bodies known as Collecting Societies to which owners, assignees and exclusive licensees under section 5,9,10 and 39 may join for their benefit. Arising from these provisions he submitted that the word “may” as used in section 32(b) (1) makes it clear that the owner, assignee and exclusive licensee under section 14 to compulsorily assign or transfer its copyright to a Collecting Society has no locus standi to institute action relating to the infringement under the combined effect of sections 10 and 15. A statutory owner may decide to administer his copyright or may assign some of his copyright to some other person. That being so under the Copyright Decree (as amended) a Collecting Society has no locus standi to institute any action for infringement of copyright belonging to an owner who has no contractual relationship with it. The plaintiff is fully covered under section 15 which is the only section that confers locus standi.
Before a Collecting Society can qualify to institute an action it must represent the owners, assignee or exclusive licensees of the copyright. He pointed out that the word “represent” can only mean some form of representation recognized under section 10. He referred to an unreported decision of Kachikwu J (as then was) in the case of American Pictures Export (Africa) Ltd. v. Sound of Music Ltd. (Suit No. FHC/L/40/81) which was delivered on 24 November 1983 and Adenuga v. IIesanmi Press Ltd. (1991)5 NWLR (Pt. 189)82. He submitted that it is established that the plaintiff is the most substantial owner of copyright in musical works within the territory of Nigeria. The plaintiff clearly maintains its copyright. Since it has not been divested of the statutory rights under section 15 it has unfettered right to bring an action for infringements of its copyright on the grounds that nowhere in the Copyright Decree is an owner forbidden from collecting its due compensation for the usage of its work to which copyright attaches and there is no provision restraining or compelling an owner to join any Collecting Society as a condition procedure to enjoying his private property rights guaranteed in chapter 4 of the 1979 Constitution and as preserved by Decree 107 of 1993. On the interpretation of section 32(b) of the copyright Amendment Decree 1992, he submitted that section is intended to enhance the enforcement capacity of an owner, assignee and exclusive licensee and not to restrain such category of persons since any such interpretation would be an infringement of the fundamental human rights to property.
The Nigerian Copyright Council can only assume responsibility for those copyrights specifically assigned to it under section 29 of the 1988. It is also clear that sections 30 and 32 (a) are irrelevant to the action before the court because the particulars of claim shows that it is an action of an owner of copyright instituted against an alleged infringer. There is no dispute before the court that the plaintiff controls exclusively the copyright in musical works comprised in paragraph 12 of the affidavit in support. The objectives of a Collecting Society are as enumerated in section 32 (b) of the copyright amendment Decree 1992. He contended that section is complementary to sections 5 and 4 of the copyright Decree 1988 because before a Collecting Society can be formed and before it can administer the objectives listed in section 32(b) it must have first obtained the consent of the owner, assignee or exclusive licensee of the copyright. Failure to secure such agreement is fatal. The nature of a Collecting Society is more or less a form of agency relationship. It is therefore a misconception of the provisions of section 32(b) to argue that an owner cannot exercise its rights under sections 5, 14 and 15 except through an agent with which it has no contractual relationship. He submitted that the suggestion by the Defence that the Performing Rights. Society Ltd. of London, which is one of the contracting parties in Exhibit E, is a Collecting Society is unfounded because there is no evidence before this court that it has applied to the Nigerian Copyright Council to be registered as such: Plateau Publishing Co. Ltd. v Chuks Adophy (1986)4 NWLR (Pt. 34)205. He submitted that any user of copyright must obtain the permission or authorisation of the owner, assignee or exclusive licensee before the exploitation of any such work. Payment to any person outside the copyright owner under section 15 is at the peril of whosoever is making such payment.
He submitted that it has not been refuted that the plaintiff is the owner, assignee or exclusive licensee. It has not been shown that the plaintiff has divested its rights to any person whatsoever and there is no evidence to deny the contention that the defendant has continued to infringe the plaintiff’s copyright. He urged me to disregard the first leg of the preliminary objection on this account.
On the further and better affidavit of 25/5/95 filed by the defendant, Mr. Oguakwa submitted that Exhibits A and C to that affidavit are not true representations of the circumstances surrounding the matter to which they refer in Suit No. FHC/L/CS/683/94. I was referred to paragraph 9 to 16 of the plaintiff’s further counter affidavit of 7/6/95 which contain the true account. He submitted that by virtue of section 91 (3) of the Evidence Act the document having been made by a person interested (NCC) and addressed to yet another person interested (the defendant) intending to assist in those proceedings to establish that the plaintiff has no locus standi is in-admissible and he urged me to so hold: Anyaebosi v. R.T. Briscoe Ltd. (1987)3 NWLR (Pt. 59)84 a Supreme Court Decision. With respect to Exhibit B. the defendant is not a party to the action and so cannot take any benefit therein.
On the allegation of fraud sought to be introduced by the defendant, he submitted that at this stage of the case it would be most unfair and, in fact, unjustifiable for this court to be urged to reach that conclusion in the absence of a cogent and irrefragable evidence. Reliance is placed on the recent decision of this court in Dangad (WA) Ltd. & Others v. Chief Donald Nwandu (Suit No. FHC/L/CS/269/92) which was delivered on 7 June 1996. It does not lie in the mouth of the defendant to seek to convert an application under section 22 of the Copyright Act for an order of inspection and seizure to a motion for discovery of this court as an exhibit to any of their affidavits in this matter. He therefore urged me to hold that there is no ground for setting aside the order of this court which is valid and subsisting. In the end he urged me to dismiss the application.
In reply on point of law, Mr. Ogunsanya drew my attention to Order 24 as contained in 1996 Annual Practice of England which deals extensively with the purpose of an Anton Piller Order. Once the person against whom the order is made gets notice the purpose is defeated because the idea is to catch the other side unawares. It is not a punitive measure by the court but simply a device to ensure the achievement of justice. I was referred to the provisions of sections 91 and 111 of the Evidence Act to show that Exhibit A, B and C are admissible. The maker of the letter (Exhibit A) has personal knowledge and the ruling (Exhibit B) is a public document. Finally, he submitted that the plaintiff has no right to bring the present action having regard to section 30 of the Copyright Decree 1988 (as amended). Mr. Ogunsanya therefore once again invited me to dismiss the suit.
The foregoing synopsis constitutes a fair and accurate account of the issues in contention between the parties together with the submissions of both learned counsel. We most now endeavour to appraise the merit of these arguments. Let us focus our attention on the application for discharge of the ex parte order earlier made by me on 8th May 1995. It is now well recognised that interlocutory remedies available in intellectual property actions include Anton Piller orders. Also it is trite learning that all equitable remedies, such as injunctions, account of profits, Anton Piller orders and Mareva Orders are discretionary. The only overriding consideration is that such discretion must be exercised judicially and judiciously in the interest of justice to both sides. In other words, it must not be exercised capriciously but rather in accordance with settled rules as discernible from myriad decisions of various superior and appellate courts. Among the factors normally taken into consideration are these: Whether the plaintiff has acted promptly to safeguard its interest as delay could be fatal; whether the plaintiff’s conduct is beyond reproach; whether the remedy would occasion undue hardship on the defendant; whether damages will be and adequate remedy; whether there is full disclosure of relevant facts and whether the applicant is ready will to give an undertaking in damages etc.
First, it must be pointed out that the ex parte interlocutory order was granted by me on the condition that the plaintiff gives a “realistic undertaking in damages.” Speaking for myself. I should have thought that a realistic undertaking in this context would require the plaintiff filing a copy of its latest audited account instead of the piece of paper which was signed by the general manger, Mr. Mayowa Ayilaran. This is all the more perplexing having regard to the magnitude of the claim .i.e. one hundred million naira (N100,000,00) The undertaking is the price which the plaintiff must pay before the order is granted and such be seen to be unalloyed. See Kotoye v. C.B.N.) (1989)61 NWLR (Pt. 98)419 at page 450. In my own view it is inconceivable that a general manager could commit his employers to such an astronomical amount in such a causal manner. That is not all.
Secondly, the main thrust of the defendant’s objection is that the order was fraudulently obtained from this court. I have scrutinized the evidence adduced before me and I must affirm that there is no positive basis for this suggestion. Nonetheless, there is substance in Mr. Ogunsanya’s contention that there was suppression or non-disclosure of relevant facts by the plaintiff which in itself is an adequate ground for discharging the ex parte order. As pointed out by a respectable authority:
“A matter is regarded as material for this purpose either if it is relevant to the existence of a power to grant an injunction or if it is one of those circumstance that the court takes into account in exercising its discretion. Furthermore, the better view is that it does not have to be shown that the undisclosed matter in question would, if established, have been decisive, for one reason or another, against the party who has not made a proper disclosure. It is sufficient that it is relevant and of such a nature that it might foreseeably have been regarded by the court as of weight………………..” See page 476 of Equitable Remedies (Third Edition) by I.C.F. Spry.
Until the defendant raised the issue in their further and better affidavit that they had applied for registration as a Collecting Society and that their application had been rejected by the Nigerian Copyright Council. They did not reveal that this rejection had provoked an application for certiorari as far back as 1994, and which is still pending before the Hon. Justice Belgore, Chief Judge. It is quite obvious that by the time the plaintiff applied for the order sought to be discharged herein, they were fully conversant with these material details which they ought to have disclosed. Test the matter this way; If it had been brought to my attention that there was a pending controversy as to the status of the plaintiff company I would certainly have been most reluctant to grant the ex parte order as I was virtually misled to do on that occasion. Now that all the full facts have been exhumed there is no basis for continuing to sustain the said order which I have now discovered to have been granted under a misapprehension of material facts. Consequently the first prayer succeeds. The ex parte order made by me on 8th May 1995 is hereby vacated forthwith.
We can now direct our attention to the issue of locus standi. This argument will stand or fall on the answer to the question whether the plaintiff can be regarded as a Collection Society. The term locus standi means the legal capacity to institute an action in a court of law. If the plaintiff has no legal capacity to institute an action the court will have no jurisdiction to entertain the claim. Locus standi is a threshold issue, the absence of which terminates the suit since the court is thereby deprived of jurisdiction. In other words, it is an oblique challenge to the jurisdiction of the court which can be raised at any stage of proceedings. See Dada v. Ogunsanya (1992)3 NWLR (Pt. 232)754 at page 771, a decision of the Supreme Court.
It has been contended on behalf of the plaintiff that section 15 of the Copyright Decree 1988 (as amended) is the only section which confers a right of action on the proceedings. At this time we are not concerned with that issue. Nor are we interested in the fact that an infringement of the plaintiff’s copyright has supervened. Such an inquiry must be reserved for the full trial so as to avoid the possibility for reaching factual conclusions at this interlocutory stage on issues which should be reserved for the actual trial. What is at stake now is whether the plaintiff has the capacity to sue. If I find that the plaintiff comes within the definition of a Collecting Society after detailed enquiry then the requirement of registration becomes virtually mandatory, and if that was not done the plaintiff cannot sue as non-registration will contravene the provisions of section 32(B) of the Copyright (Amendment) Decree 1992.Which logically leads to the next question. What are the attributes of a Collecting Society? The essential characteristic are these: the owners of copyrights authorise collective administration organisation to administer the use of these rights by monitoring the use of their works, negotiate with prospective users of such copyrighted works, give them licensees on the basis of pre-agreed fees, collect such fees and apportion them among the owners of such rights. Which is an indirect and cost-effective way of enjoying the fruits of their intellectual properties which are protected by the Copyright Decree 1988 (as amended). This object is achieved in one of two ways. The owners of protected works can either come together under an umbrella organisation and constitute some of their members into a committee that will assume administrative responsibility for collecting appropriate royalties on behalf of such members instead of each copyright owner suing all infringers individually. The other alternative is for a company to be independently established, as in the instant case, with the primary object of negotiating with as many copyright owners as possible to secure the assignment of their right on mutually agreed terms of payment. Whichever method is adopted, only one such organisation can be registered in respect of any class of copyright under the Copyright (Amendment) Decree 1992 (vide section 32(B) (3).
Our next effort is to examine the evidence to see if the plaintiff can be truly regarded as a Collecting Society. In this connection it must be pointed out that virtually all the cases cited to me cannot be of much assistance in this connection because they were all decided by the various courts before the promulgation of the Copyright (Amendment) Decree 1992. Mr. Oguakwa has submitted that the Performing Rights Society Ltd. (PRS), the plaintiff’s principal, is not a Collecting Society because it has not applied for registration by the Copyright Council. This argument does not advance the matter any further. On the other hand, if it could be established that PRS comes within the description or definition of a Collecting Society then the defendant’s objection must be sustained.
Take for example the deed of assignment between the plaintiff and Sunny Ade, I.K. Dairo and Mike Okri. Clause 3 of the identical agreements enables the plaintiff to collect monies in respect of the assigned musical works and pay the assignors such sums out of the monies so collected in accordance with the Rules formulated by the plaintiff from the to time subject to the conditions set out in clause 4 of the deed of assignment (See Exhibits F to F2) which are attached to the plaintiff’s application for ex parte order which is now sought to be discharged). Secondly, it is quite apparent from the provisions of clauses 2, 8 and 9 of the agreement between the parties that they both appreciate the fact that the plaintiff is a Collecting Society. This is supported by a paper prepared by the International Bureau of World Intellectual Property Organization (WIPO) on Collective Administration of Copyright and Neighboring Rights which was presented at the WIPO/United states Copyright Training Seminar for Nationals of Nigeria and China which took place in Washington D.C. between September 21st to 25th, 1992 and which I was privileged to attend. Attached to this WIPO paper is an Annex containing the names of Collective Administrative Organization worldwide (61 in all) mentioned in the said paper which embodies a global survey of all Collecting Societies. Among these names is the Performing Rights Society Limited of the United Kingdom from which company the plaintiff derived their authority. Perhaps I should point out in parenthesis that WIPO is one of the sixteen (16) specialized agencies of the United Nations Organization (UNO) which is responsible for the promotion of the protection of intellectual property throughout the world.
For instance, Article 3(1) of Exhibit E is in identical terms as similar bilateral agreements between Collecting Societies which are based on the CISAC Model Contract as reproduced on page 9 of the WIPO paper, to which reference has already been made, and I quote for ease of reference:
“Each of the contracting parties undertakes to enforce, within the territory in which it operates, the rights of the members of the other party in the same way and to the same extent as it does for its own members, and to do this within the limits of the legal framework in the country where protection. Moreover, the contracting parties undertake to uphold to the greatest possible extent, by way of the appropriate measures and rules, applied in the field or royalty distribution, the principle of solidarity, as between the members of both Societies, even where, by the effect of local law, foreign works are subject to discrimination. In particular, each Society shall apply to works in the repertoire of the other Society the same tariffs, methods and means of collection and distribution of royalties as those which it applies to works in the repertoire of the other Society the same tariffs, methods and means of collection and distribution of royalties as those which it applies to works in its own repertoire”.
It will thus be observed that Exhibit E sought to give the above provision a different slant by adopting “administers” instead of “instead of “operates”, “so” instead of “this”; legal “protection” instead of legal “framework”; “by”; legal “protection” instead of legal “framework”; “by” virtue instead of “in” virtue; the contracting “Societies” instead of “parties”; omission of the phrase “and rules, applied in the field of royalty distribution” and the substitution of “regarding the distribution of fees” and by replacing “of royalty” with “of fees” in Exhibit E. These discrepancies are deliberate and I am convinced that they have been adopted to disguise the true character of the plaintiff as Collecting Society. For instance, if the word “royalty” and been used instead of the less expressive word “fees”,, the true character of the plaintiff would easily have been discerned. To further buttress the conclusion that the variation in phraseology is deliberate, I will further reproduce Article 7(1) of the CISAC Model Contract as reproduced on page 12 of the WIPO Publication as follows:
“Each Society undertakes to do its utmost to obtain programmes of all public performances with take place in its territories and to use these programmes as the effective basis for the distribution of the total net royalties collected for those performances.”
Again as in Article 3(1) the plaintiff replaced “royalties” in the above quotation by “fees”. This is clearly a case of deliberate misrepresentation which was perpetrated to conceal the proper role of the plaintiff. There is no basis for the suggestion that they are merely agents of the owners per se. Under a discussion of Collective licensing and collecting societies, the learned authors of a celebrate work after describing how the Performing Rights Society Ltd. (PRS) was formed in 1914 to administer the public performance rights in musical works, followed in 1934 by the inauguration of photographic Performance Ltd. had this to say: “The Gregory Committee in its 1952 Report regarded the two performing rights societies, PRS and PPL, as quasi – monopolies and recommended the establishment of a tribunal which would have the power to revise and review the tariffs and conditions imposed by the two societies. The Performing Rights Tribunal was in consequence established under the Copyright Act. 1956. “See page 659, paragraph 15.2 of The Modern Law of Copyright and Designs (Second Edition) Volume One which Mr. Ogunsanya kindly placed at my disposal as we do not have a copy of this book in own library. The point of this quotation is not only to unequivocally show that PRS is a collecting society but also to demonstrate that, as its agent, the plaintiff falls squarely into the same category, the ingenious and attractive arguments of Mr. Oguakwa notwithstanding. It is absurd to assume that a de facto monopoly which is involved in the administration of the only a small proportion of them in this country should be given a free reign by the Government. That is the rationale for setting up the Nigerian Copyright Commission. Furthermore, even on the plaintiff’s own account the activities or objects of the plaintiff company embrace the definition of a “collecting society” as expressed or described under section 32 (B) (8) of the Copyright (Amendment) Act 1992 as:
“an association of copyright owners which has as its principal objectives the negotiating and granting of licenses, collecting and distributing of royalties in respect of copyright works;”
More importantly, section 32 (B) (4) of the same Act provides that it shall be unlawful for any such association to perform the duties of a collecting Society without the approval of the Nigerian Copyright Council. This provision is significant in at least two respects. First, the NCC must not approve another society in respect of any class of copyright owners if it is satisfied that an approved society is already in existence which adequately protects a penalty of N10,000 on the first conviction and N2,000 for each day on which the offence continues. What is no less intriguing is the fact that the plaintiff deemed it appropriate to seek registration in the fist place. This fact in itself constitutes incontrovertible evidence that they are fully aware of the true character of their association. Hence they are estopped from denying the patent fact that the plaintiff is a Collecting Society.
For the sake of completeness, I have considered the objection to the admissibility of the letter, Exhibit A, which was attached to the applicant’s better and further affidavit and I am unable to see anything therein that is repugnant to section 91 of the Evidence Act. As regards Exhibit B, which is an order of a competent court the defendant does not have to be a party to the action to be bound by the order.
It is for the foregoing reasons that I have come to the inexorable conclusion, after deep refection, that the plaintiff is a collecting society. Not having been registered pursuant to section 32 (B) (4) of the Copyright (amendment) Act 1992 it cannot be permitted to operate as such a body. To do so would be tantamount to subverting not only the letter but also the spirit of the Copyright laws of this country. Consequently the application succeeds on both grounds; Mr. Ogunsanya has invited me to dismiss the claim. This submission cannot be justified on any legal principle especially as the merit of the claim has not been explored. That being so the proper order to make is one striking out the suit for lack of locus standi to initiate the action. Which I hereby do through this medium. See Oloriode v. Oyebi (1984) ISCNLR 390 and Adefulu. v. Oyesile (1989) 5 NWLR (Part)377. That will be the order of this court. Pronounced in open Court at Lagos this 31st day of July 1996.