«back to Cases and Principles

NLIPW Cases and Principles

Compact Disc Technologies Ltd. v. Musical Copyright Society of Nigeria

Court of Appeal

Judgement delivered on Wednesday, March 17, 2010
Citation: 53 NIPJD [CA. 2010] 787/2008
Suit No. CA/IL/787/2008      Jurisdiction: Nigeria

BEFORE THEIR LORDSHIPS

PAUL ADAMU GALINJE, J.C.A.
REGINA OBIAGELI NWODO, J.C.A.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the lead judgement)

Appearances: Ihebie for the Defendants/Appellants
Louis Udoh (manager) and Rotimi Abimbole for the Plaintiff/Respondent

Collecting Society in Nigeria, Combined effect of Sections 9,10,15(1), 17 and 39 of the Copyright Act 2004, Locus Standi — This case considered whether the Musical Copyright Society of Nigeria (MCSN) has the right to collect musical royalties on behalf of composers, authors, songwriters and music publishers; whether the MCSN must be licensed as a collecting society in Nigeria, in order to be entitled to enforce the rights transferred to it by copyright owners and assignees; and whether the judgement in MCSN v. Adeokin Records was based solely on the Copyright Act of 1988.

I. FACTS

On August 2, 2007, the Plaintiff/Respondent (Musical Copyright Society of Nigeria – MCSN) filed an action (Suit No. FHC/L/CS/713/2007) at the Federal High Court, Lagos Judicial Division, seeking various orders of declaration and perpetual injunction against the Appellants (Compact Disc Technologies and ors.). MCSN sought the following reliefs against the Defendants/Appellants:

(a). A declaration that the acts of the Defendants/Appellants without the authority of the Plaintiff/Respondent of importing, recording, reproducing, distributing, offering for sale, communicating to the public and publicly performing or playing the said musical works on audio and video devices such as tapes or video compact disc and/or similar devices at its stores, is an infringement of the Plaintiff/Respondent’s copyright as guaranteed by the Copyright Act Act, 1988 (as amended).

(b). An order of perpetual injunction restraining the Defendants/Appellants by themselves, assigns, agents and servants from further importing, reproducing, distributing, offering fro sale, publicly performing or playing and communicating to the public, any of the said work(s) for that matter from the Plaintiff/Respondent’s repertoire without the Plaintiff/Respondent’s authorization or permission.

(c). An order of perpetual injunction directing the Defendants/Appellants jointly and severally whether by themselves, assigns, agents and servants from further infringing, or continuing to infringe the copyright in the audio or audio visual musical works from the Plaintiffs repertoire.

(d). An order for delivery up to the Plaintiff/Respondent of all copies of the said musical works on audio and video devices such as tapes, video compact discs and or similar devices of musical works.

(e). Special damages in the sum of N250,000,000.

(f). General damages in the sum of N100,000,000.

In a judgment delivered on August 5, 2008, Honourable Justice J. E. Shakarho of the Federal High Court concluded that the Plaintiff/Respondent has the locus standi to institute this action as an owner, assignee or an exclusive licensee of the copyright in compliance with the provisions of section 15(1) of the Copyright Act and not a collecting society as provided for by Section 32 (B) of the Act.

At the court of appeal, after looking through the brief of both parties, the court proceeded to determine the following three grounds:

  1. Whether or not the Plaintiff/Respondent as owner, assignee and exclusive licensee of copyright in the musical work has a locus standi to institute and maintain the action, by virtue of Section 15(1) of the Copyright Act of 1999 as amended, and the Deed of Assignment executed by different artistes and/or Reciprocal Agreements.
  2. Whether or not the Plaintiff/Respondent, an exclusive assignee of copyright must be a collecting society and/or have a collecting society’s license in order to be entitled to enforce the right transferred to it by the copyright owner or assignees under the Deeds of Assignment or Reciprocal Agreements.
  3. Whether or not the judgment in the case of MCSN v. Adeokin Records (2007) 13 NWLR 615 was based solely on the Copyright Act of 1988, devoid of the 1992 and 1999 amendments.

Issue 1: Whether or not the Plaintiff/Respondent as owner, assignee and exclusive licensee of copyright in the musical work has a locus standi to institute and maintain the action, by virtue of Section 15(1) of the Copyright Act of 1999 as amended, and the Deed of Assignment executed by different artistes and/or Reciprocal Agreements.

Agreeing with the decision of the Federal High Court in Musical Copyright Society of Nigeria Ltd/Gte v. Adeokin Records (2007) 13 NWLR (Pt. 1052) 616, the court held that there is no basis for considering whether or not the appellant is a collecting society for the purpose of granting him locus standi as the issue of collecting society is completely irrelevant to the Defendants/Appellants’ position or standing by virtue of Section 15 of the Copyright Act.

The court also pointed out that in the case of MCSN v. Adeokin Records, it was held that the Copyright Act of 1988 was the applicable law as against the Copyright Act of 1999 because the cause of action arose before the amendment introducing the limitation in question in the Copyright Act of 1999. Similarly, in the present case, the court pointed out that the cause of action clearly and undisputably arose in 2007, as such making it imperative to apply the provisions of the Copyright Act of 2004, which like its precursor, the Copyright Act of 1999 contains a limitation provision under Section 17 (Limitation to the right of action).

“It is undisputable, that ever since the provision of Section 17 of the Copyright Act, 2004, was introduced into the Act, any other provision hitherto contained into the Act (Copyright Act 1988, 1992 and 1999, respectively), which contradicts the latter Act (2004) is deemed modified, or repeated to purposely conform therewith….In the light of the above, I have no doubt in my mind that by the combined effect of the provisions of Sections 9,10,15(1), 17 and 39 of the Copyright Act, 2004, the Respondent ought to have obtained the prior approval of the copyrights commission before instituting the action in the lower court. Thus having failed to secure or obtain the approval of the copyrights commission prior to instituting the action in question, the Respondent lacks the locus standi to institute the action in the lower court

Issue 2: Whether or not the Plaintiff/Respondent, an exclusive assignee of copyright must be a collecting society and/or have a collecting society’s license in order to be entitled to enforce the right transferred to it by the copyright owner or assignees under the Deeds of Assignment or Reciprocal Agreements.

I think there is no gainsaying the fact that having resolved issue no.1 in favour of the Appellants, the present issue no. 2 also ought to be answered in the affirmative, and resolved in the Appellants favour. And I so hold…having failed to obtain the approval or exception of the copyrights commission as provided under Section 39 of the Act, the Defendant is devoid of the necessary locus standi to institute the action in the lower court.

Issue 3: Whether or not the judgment in the case of MCSN v. Adeokin Records (2007) 13 NWLR 615 was based solely on the Copyright Act of 1988, devoid of the 1992 and 1999 amendments.

“I have no hesitation whatsoever in holding that in view of the answers to both issues No. 1 and 2 in the affirmative, the answer to issue no.3 is most undoubtedly in the affirmative. The said issue no. 3 is accordingly hereby resolved in favour of the Appellants.”

II. FULL FACTS

The instant interlocutory appeal was filed by the Appellants against the ruling of the Federal High Court, Lagos Judicial Division holden at Lagos, which was delivered by the Honourable Justice J. E. Shakarho, J. on the 5th day of August, 2008, in Suit No. FHC/L/CS/713/2007, involving the parties herein.

It is discernible from the record of appeal, that the Respondent had filed a Writ of Summons and Statement of claim, on 2nd August, 2007 in the lower court, seeking various orders of declaration and perpetual injunction against the Appellants. By the statement of claim thereof, the Respondent has explicitly sought the following reliefs against the Appellants:

a. A DECLARATION that the acts of the Defendants without the authority or permission of the Plaintiff of importing, recording reproducing, distributing, offering for sale, communicating to the public and publicly performing or playing the said musical works an audio and video devices such as tapes or video compact disc and/or similar devices at its stores is an infringement of the Plaintiffs copyright as guaranteed by the copyright Act, 1988 (as amended).

b. AN ORDER OF PERPETUAL INJUNCTION restraining the Defendants by themselves, assigns, agents and servants from further importing, reproducing distributing, offering for sale, publicly performing/playing and communicating to the public any of the said works or any works for that matter from the Plaintiffs repertoire without the Plaintiffs’ authorization or permission.

c. AN ORDER OF PERPETUAL INJUNCTION directing the Defendants jointly and severally whether themselves, assigns, agents and servant or howsoever from further infringing, or continuing to infringe the copyright in the audio or audio visual musical works from the Plaintiffs repertoire.

c(sic) AN ORDER for delivery up to the Plaintiff of all copies of said musical works on Audio and video devices such as tapes, video compact discs and or similar devices of musical works listed in paragraph 11 and 12 above.

d. Special damages in the sum of N250,000,000:00

d(sic). General damages in the sum of N100,000,000:00.

On 1st November, 2007 the Appellants filed a memorandum of conditional appearance, a statement of defence and counter claim, respectively, in the court below. By the said statement of defence thereof, Appellants urged the lower court to-

‘dismiss the claim in its entity for lack of merit, lack of locus standi, brought in bad faith and deserving of substantial costs in favour of the Defendants’.

The Appellants equally counter claimed against the Respondent for the sum of N200,000:00 (Two Hundred Million Naira), as general damages for loss of income, damage to business reputation, damages to brand recognition and exemplary damages. See pages 261-268 of the Record.

On 8th February, 2008 the Appellants filed a Motion on Notice, praying the lower court the following relief:

‘1. AN ORDER dismissing this Suit on the ground that the Plaintiff/Respondent as an alleged owner assignee and exclusive licensee lacks the locus standi, under Section 15A and Section 328 of the copyright Act (As amended) 1999, to commence and plead the reliefs sought in this suit’.

The motion was predicated on the following two grounds:

A. Section 15A of the copyright Act (As amended) 1999 limits the right of action of an alleged owner assignee or exclusive licensee to a copyright to first and foremost having a valid and subsisting collecting society’s licence issued by the Nigerian copyright commission (NCC) or to having an exemption granted to having such licence issued by NCC before performing the functions of a collecting society as defined in Section 15A of the copyright Act, 1999 (As amended).

  Section 15A and 328 (4) (5) and (6) of the copyright Act (as amended) 1999 ascribes civil and criminal liabilities to persons and their accessories who engage in the functions of a collecting society without the statutory licence or exemption to licence issued by NCC.

At the conclusion of the hearing of the application in question, the learned trial Judge of the court below delivered a ruling, on 5th August 2008, wherein he came to the following conclusion:

‘From all I have discussed so far, I have come to the conclusion that the Plaintiff has the locus standi to institute this action as an owner assignee or an exclusive licensee of the copyright in compliance with the provisions of Section 15 (1) of the copyright Act and not a collecting society as provided for by Section 328 of the Act.

The objection of the learned counsel for the Defendant is misconceived, frivolous, and without any legal basis. The Motion on Notice of the Defendants fails and is hereby dismissed in its entirety with cost of N2,500:00 against the Defendants in favour of the Plaintiff’

Thus, the present appeal is a fallout of the above ruling of the lower court. The Notice of Appeal, which was filed in the lower court’s registry, on 15th August, 2008, is predicated on a total of three grounds of appeal.

In compliance with the rules of this court, the parties filed and served their respective briefs of argument. The Appellants’ brief was filed on 14th November, 2008, while that of the Respondent was filed on 29th January, 2009. When the appeal last came up for hearing, on 14th January, 2010, both learned counsel for the respective parties adapted their briefs, and relied upon the submissions contained therein. The appeal was accordingly reserved for delivery of Judgment.

The Appellants have so far formulated two issues in the brief thereof for determination, viz:

(a) Whether or not an alleged owner, assignee, or exclusive, licensee or copyright can validly and solely prosecute a group copyright claim relying on only Section 15 (1) of the copyright Act 1988 and the decision of this court in MSCN LTD V ADEOFIN RECORDS (2007) 13 NWLR 615 to the exclusion of the provisions of Sections 15 (A) and 32 (b) of the copyright Act (as amended) 1999.

(b) Whether or not it is a triable issue under Sections 15 (A) and 32 (B) of the 1999 copyright Act (as amended) or an alleged owner assignee or exclusive licensee to group copyright to ipse dixit plead locus standi without pleading that it has a valid and subsisting collecting society is license.

On the other hand, the Respondent has deemed it fit to raise a total of three issues in the brief thereof, to wit:

‘1. Whether or not the Respondent as owner assignee and exclusive licensee of copyright in the musical work allegedly infringed in the action ipso facto have a locus standi to institute and maintain the action by virtue of Section 15(i) the copyright Act as amended and the Deeds of Assignment executed by different artistes and or Reciprocal Agreements (attached to the Respondent’s statement of claim (Formulated from ground 1)

2. Whether or not the Respondent an exclusive Assignee of copyright must be a collecting society and/or have a collecting society’s licence in order to be entitled to enforce the right transferred to it by the copyright owners or assignors under the Deeds of Assignment or Reciprocal Agreements. (Formulated from Ground 2).

3. Whether the Court of Appeal Judgment in the case of Musical copyright society of Nigeria Ltd. Gte V. Adeokin Records and Anor. (2007) 13 NWLR Part 1052, page 616 delivered on the 27th day of September, 2004 was based solely on the Nigerian copyright Act 1988, devoid of the Amendments of 1992 and 1999 (formulated from Ground 3)’.

Having critically contrasted the two issues raised in the Appellants’ brief with the three (issues) formulated by the Respondent in the brief thereof, I am of the considered view that they are not mutually exclusive. Ironically, however, none of the two issues raised in the Appellants’ brief has been indicated to be distilled from, or predicated upon, any of the three grounds of appeal contained at pages 359 to 362 of the record of appeal. Contrariwise, each of the three issues formulated in the Respondent’s brief has clearly been stated to be predicated upon a distinct ground of appeal. The 1st , 2nd , and 3rd issues were stated to have been each formulated from grounds 1, 2 and 3, seriatim.

It must be reiterated, at this point in time, that ever since the introduction of brief writing in the rules of procedure and practice in the Supreme Court (in 1977), and the Court of Appeal (in 1985), respectively, grounds of appeal have ceased to be considered by the courts in the determination of appeals. What the courts normally consider are basically the issues for determination, which are properly distilled from grounds of appeal, and no more. See AKINLAGUN VS. OSHOBOJA (2006)12 NWLR (PT. 993) 60 at 84-85 paragraphs G-A.

The rule has been firmly settled, that issues for determination raised in a brief of argument must be predicated upon, or distilled from, valid grounds of appeal. Afortiori, although a respondent (and indeed an appellate court), has the discretion to reframe or formulate issues for determination in an appeal distinct from those raised by the parties in their briefs, such reframed or formulated issues must be distilled, from the grounds of appeal filed by the parties. See AMADI VS. N.N.P.C. (2000) 10 NWLR (PT. 674) 76; JATAU VS AHMED (2003) 4 NWLR (PT. 811)498, MADUMERE VS. OKAFOR (1996) 4 NWLR (PT. 445) 637; ADELUSOLA VS. AKINDE (2004) 12 NWLR (PT.887) 295 AKINLAGUN VS. OSHOBOJA (2006) 12 NWLR (PT. 993) 60 at 80 paragraphs D-E; 81 paragraphs E-G; 90 paragraphs C, H, respectively.

It is indeed a trite and well settled doctrine, that where no issue is raised in respect of a particular ground of appeal, the said ground of appeal is at large and deemed abandoned, thus it ought to be discountenanced and struck out. See NDIWE VS. OKOCHA (1992)2 NWLR (PT. 252)129; IYAJI VS. EYIGEBE (1987) 3 NWLR (PT. 61) 523, AJIBADE VS. PEDRO (1992) 5 NWLR (PT. 241) 257; ARE VS. IPAYE (1986) 3 NWLR (PT.29) 416; ANUNLAGUN V. OSHOBOJA (supra) at 82 – 83 paragraphs H-A.

I have earlier indicated my preference to the three issues raised in the Respondent’s brief over and above the two formulated by the Appellants in the brief thereof. Yet, I am not unmindful of the very fact that the Respondent has not filed a cross-appeal. It is indeed a well founded principle, that respondent’s issues (where the respondent has not cross-appealed), must be distilled, from or  predicated upon, a valid ground of appeal. See ANIMASHAUN VS. UNIVERSITY COLLEGE HOSPITAL (1996) 10 NWLR (PT.476) 65; AROWOLO VS. AKAPO (2003) 8 NWLR (PT. 823) 451; PADAWA VS. JATAU (2003) 5 NWLR (PT.813) 247; AKINLAGUN VS. OSHOBOJA (supra) at 90 paragraphs D-G, respectively.

Having regard to the above postulations, there is every reasonable cause for me to proceed to determine the appeal on the basis of the three issues raised in the Respondent’s brief.

As alluded to above, issue No. 1 of the Respondent raises the vexed question of whether or not the Respondent as owner, assignee and exclusive licensee of Copyright in the musical work has a locus standi to institute and maintain the action, by virtue of section 15 (1) of the Copyright Act, 1999 as amended, and the Deeds of Assignment executed by different artistes and or Reciprocal Agreements. The issue is said to have been predicated on ground 1 of the grounds of appeal.

Copiously reproducing the provisions of section 15 (1) of the Copyright Act, 1999 (as amended), the learned counsel submitted, inter alia, that essentially the issues in the instant appeal are all about Copyright Law. The substantive action in the lower court was for the infringement of Copyright, to which the Respondent is the owner, assignee and exclusive licensee under the provision of section 15 (1) of the Copyright Act (supra). See paragraphs 1, 4 – 15 of the statement of claim, at page 5 – 16 of the record of appeal.

It was argued, that the combined effect of the provisions of sections 9, 10 and 15 (1) of The Copyright Act, 1999 and the decision in THE MUSICAL RIGHT SOCIETY OF NIGERIA LTD/GTE VS. ADEOKIN RECORDS (2007) 13 NWLR (PT.1052) 616 at 678 paragraphs D – E, have expressly conferred legal rights in copyright to an owner, assignee, or an exclusive licensee of the copyright, hence the provisions of sections 15A and 32B, in respect of the Nigeria Copyright commission’s requisite approval, are irrelevant to this suit.

It was submitted, that the obvious person that (can) bring an action against an infringement of copyright is the author of the works, the assignee and a licensee. That, the Respondent being an owner, assignee, and an exclusive licensee has the locus standi to bring the action against the Appellants.

On the other hand, issue No 1 of the Appellants seems to have raised the same question as the Respondent’s first issue. The submission of the Appellants on the issue is to the effect, inter alia, that the legal challenge to the competence of the Respondent to sustain the claim thereof is not that an assignee, owner or exclusive licensee cannot bring a legal action for proprietary rights. That, the challenge (or objection) is that the statutory condition precedent to the exercise of such a legal right must first be met by the Respondent before the lower court can assume jurisdiction to hear and determine the merits of the claim. See MADUKOLU VS. NKEMDILIM (1972) 1 ALL NLR 587; MAGAJI VS. MATARI (2000) 5 5C 46 AT 55 & 57.

It is contended, that the condition precedent to a copyright assignee, owner, or exclusive licensee enabling a court of law to assume jurisdiction over its claim is subject to possessing a collecting Society’s license. It is further contended, that the seriousness of this condition precedent is brought to bear by the civil and criminal penalties imposed for breach of the provisions of sections 15 (A) and 32 (B) of Copyright Act 1999 ( as amended).

It was likewise submitted, that at the time this court reached a decision in MCSN LTD VS. ADEOKIN RECORDS (2007) 13 NWLR 615, the applicable law was the Copyright Act 1988 (which unlike the present Copyright Act) did not require a copyright owner, exclusive licensee or assignee to possess a collecting society’s licence as a condition precent for bringing a legal action under section 15(1) of the copyright Act. See MCSN VS ADEOKIN (supra) at pages 631 – 632, wherein this court allegedly recognized the distinction mentioned above.

It was argued, that the holding of the court in MCSN VS. ADEOKIN (supra) at page 632 line D, to the effect that-

‘In view of the above, I hold that the 1999 Amendment does not apply to this appeal, However, assuming that the Decree applies, the clear position of the appellants locus standi as owner assignee and exclusive licensee remains unaffected by the amendment Decree’.

Can only be an obiter dictum, The reason being that the applicable law considered by the court in MSCN VS ADEOKIN’S case (supra) was the copyright Act, 1988, as opposed to the copyright Act, 1999, which provides for a condition precedent before a copyright owner, assignee, or exclusive licensee can sue.

It was further argued, that as the facts and issues in the previous case of EGUNMWENSE VS. AMAGHIZEMWEN (supra) are different and distinguishable from the facts and issues in the present appeal, the decision in the former case cannot be followed to determine the present appeal. See ODUGBO VS. ABU (2001) 7 SC (PT.1) 168 AT 202.

As alluded to above, issue No 1 raises the vexed question of whether or I not the Respondent, as owner, assignee and exclusive licensee of copyright in  the Musical work, has a locus standi to institute and maintain the instant action, by virtue of the provisions of section 15(i) of the Copyright Act, 1999 as amended, and the Deeds of Assignment executed by different artistes and or Reciprocal Agreements. That issue is tied down to ground No 1 of the grounds of appeal.

Grammatically, the word ‘locus’ is of latin derivation, which simply means the place or position where something is done or exists. Jurisprudentially, the term ‘Locus Standi’ (standing) denotes a party’s right to make a legal claim, or seek judicial enforcement of a duty or right. In the case of BAKER VS. CARR, 369 US. 186, 204, 82 Supreme Court 691, 703 (1962), the US Supreme Court, was recorded to have aptly observed per Brennan, J. thus:

“Have the appellants alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions? This is the gist of the question of standing”

I think, it was Joseph Vining who aptly stated in his book, LEGAL IDENTITY (1978) at page 55 thus:

“The word standing is rather recent in the basic judicial vocabulary and does not appear to have been commonly used until the middle of our own century. The word appears here and there, spreading very gradually with the discernible pattern. Judges and lawyers found themselves using the term and did not ask why they did so or where it came from.

See also Black’s Law Dictionary, Eighth Edition, 2004 at page 1442.

The claim filed by the Appellant against the Respondent in the lower court is as per the writ of summons, and statement of claim thereof, dated and filed on 2nd August, 2007, contained at pages 3 – 16 of the Record of appeal. It is not in doubt, that the cause of action of the instant suit accrued on the very date the action was filed in the lower court. And that was on 2nd August, 2007. By implication, the law applicable to the action is the Copyright Act, Chapter 28, Laws of the Federation of Nigeria, 2004.

I have accorded a critical, albeit dispassionate, consideration upon the nature and circumstances surrounding the action, the 24 paragraphed statement of claim, the provisions of the 54 sections of the Copyright Act, 2004 (supra), the record of appeal vis-a-vis the submissions of the learned counsel in the respective briefs of argument thereof. The learned trial Judge has found at pages 353 – 354 of the record thus:-

‘The law applicable to an action is the existing law at the time the cause of action accrued. This case was filed on 2nd August, 2007, and the existing law 15 copyright Act, 1990 as amended by the Copyright Amendment Decree No. 98 of 1992 and the copyright (Amendment) Decree 1999 part of which have (sic) reproduced above’.

Let me state, at this stage in time, that it is rather regrettable with due respect, that the learned trial Judge, and indeed the learned counsel to the respective parties, would lose sight of the very obviously fundamental fact that the law applicable, as at 2nd August, 2007 when the action was filed, was the copyright Act Cap, 28 Laws of the Federal Republic of Nigeria, 2004. With due  respect, the reference by the learned trial Judge and the learned counsel to the  copyright (Amended) Decree 1999 was an unpardonable misnomer.

It is a common knowledge that the Laws of the Federation of Nigeria, 1990 have been revised and published as Laws of the Federation of Nigeria, 2004. As attested to by the Honourable Justice E.O. Ayoola, (J.S.C. Rtd) Chairman of the Law Revision Committee in the preface to the Laws of the Federation of Nigeria,2004 at page xiv, volume 1:

“The Law Revision Committee had exercised the usual powers essential to a successful low revision exercise. Among other things, it has made the usual a missions including the omission of repealed and spent statutes, preambles unless necessary, enacting clauses, amending statutes; effected consolidation of statutes where necessary and making consequential alterations; made such adaptations as are necessary and proper as a consequence of the Constitution of the Federal Republic of Nigeria 1999; made formal alterations as to names, localities and other such alterations as are necessary to bring relevant Acts into conformity with that Constitution and circumstances of democratic structure of governance and has omitted Acts which are of a temporary nature.

The objective of the law revision exercise is to bring together in this set of Revised Laws of the Federation of Nigeria, consisting of sixteen volumes, duly revised and up-to-date statutes of the Federation of Nigeria as at 2002. It is the hope of the Committee that this objective has been met. As usual, a consequence of the revision is the renumbering of the Chapter of the Act, and sometimes a re-numbering of the sections. The users of the revised Laws should take note of these changes.

Both parties have alluded to the question of compliance with the condition precedent of possessing a collecting society licence as required by section 15(1) of the Copyright Act, 1999 (as amended) i.e. most correctly the copyright Act CAP. 28 LFN, 2004 (supra). Referring to paragraph 1 of the statement of claim, the learned trial Judge came to a conclusion that-

’98.The above part of paragraph 1 of the statement of claim reproduced did not describe the plaintiff as a collecting society, the defendants cannot by their own interpretation import what is not in the plaintiffs pleading by the use of an affidavit. The plaintiff described itself as the owner assignee and exclusive licensee which accords with the provisions of section 15(1) of the Act.

See page 354, lines 8 – 13 of the Record’.

It is a trite and well founded principle, that the issue of locus standi is a condition precedent, thus fundamental to the determination of any action before a court of law. Therefore, once raised at any stage of proceeding, the court, be it the trial or appellate court of whatever hierarchical status, has a duty to determine the issue of locus standi before delving into the substantive issues of the matter. This is obviously so, because the issue of locus standi fundamentally affects the jurisdiction of the court, thus where a party has no locus standi to file an action, in the first place, the court lacks the vires (jurisdiction) to entertain the matter. See CBN VS. KOTOYE (1994) 3 NWLR (PT. 330) 66; ADESANYA VS. PRESIDENT REPUBLIC OF NIGERIA (1981) 2 NWLR 3S8; OKENWA VS. MIL. GOVT. IMO STATE (1997) 6 NWLR (PT.507) 136; IYABI-AYAH VS. AYAH (1997) 10 NWLR (PT. 523) 141; OKAFOR VS. ESENWA (1992) 4 NWLER (PT. 237) 611; EKE VS. MIL. GOVT, OF IMO STATE (2007) 13 NWLR (PT. 1052) 531 AT 505 – 566 paras G – A, respectively.

There is no gainsaying the well settled general principle, that it’s the writ of summons and/or the statement of claim (where it’s filed) that the court should normally consider in determining whether or not the plaintiff has the necessary locus standi to file the action. Thus, the processes filed by the Defendant (the statement of defence, counter affidavit, etc) are ordinarily not supposed to be taken into consideration.

However, by way of an exception to the general rule in question, the court has the liberty (discretion), in some very exceptionally deserving cases, to consider the circumstances surrounding the case as a whole, including the need to take some evidence before determining the vexed question of locus standi vis-a-vis jurisdiction. See A.G. ANAMBRA STATE VS. AG FEDERATION (1993) 6 NWLR (PT 302) 692.

I have accorded an ample consideration upon the 24 paragraphed statement of claim, contained on pages 5 – 16 of the Record, the entire provisions of copyright Act Cap 28 of the Laws of the Federation of Nigeria, 2004, the as a company limited by guarantee to carryon business in Nigeria by the name submissions of the learned counsel in the respective written addresses thereof a-vis the record of appeal, as a whole.

  It is not in doubt, that the Respondent was incorporated on 20th July, 1984 as a company limited by guarantee to carry on business in Nigeria by the name MUSICAL COPYRIGHT SOCIETY OF NIGERIA (LTD) GTE) as the owner, assignee and exclusive licensee of copyright in musical works, ceded thereto by numerous authors, composers, publishers and institutions. The Respondent has membership and an affiliation to various other international confederations and sister organizations, whose countless number of individual members have assigned the copyrights in their works for protection and administration within the territory of the Federal Republic of Nigeria exclusively to the Respondent. See paragraphs 1,4,5,6, 7, 8, 9, 10, 11, 12, 13, 14, 22, 23, and 24 of the statement of claim.

Most pertinently, paragraphs 1, 4, 5, 6, 10, 14, 22, 23 and 24 of the statement of claim in question are to the following effect:-

‘1. The Plaintiff is a company Limited by guarantee incorporated under the relevant laws of the Federal Republic of Nigeria on July 20, 1984 carrying an its business at NO.6 Olaribiro Street by Ikeja Medical Centre, off Allen Avenue, Ikeja, Lagos and is the owner, assignee and exclusive licencee of copyright in musical works cantained in paragraphs 11, 12 and 13 hereof duly ceded to it by authors, composers, publishers and institutions for the territory of The Federal Republic of Nigeria.

4. The Plaintiff is a member of the Confederation Internationale des Societes des Autueurs et Campositeurs (International Confederation of Societes of Authors and Composer) (CISAC) and the Bureau International des Societes Gerant les Droits d’Enregistrement et de Reproduction Meconique (BIEM) by  virtue of which it additionally represents the rights of other member organizations as variously assigned or licensed to them by their individual members and assignors, within the territory of the Federal Republic of Nigeria.

5. The Plaintiff is also an affiliate sister organization of the fallowing organizations whose individual members and assignors have assigned the copyright in their works for protection and administration within the territory of the Federal Republic of Nigeria exclusively to the Plaintiff.

6. The various authors, composers, arrangers and publishers of the aforesaid musical works have directly and through these affiliate sister organizations in other countries, assigned and exclusively licensed the Copyright and in many cases the attaching neighbouring rights in their respective musical works and related audio-visual works to the Plaintiff for the territory of the Federal Republic of Nigeria.

10. That further to the above paragraph the Plaintiff is to ensure that the interests of assignors and exclusive licensors of those organization and or institutions are taken core of in Nigeria by effective protection, administration and enforcement of the copyright in their musical works in the same way in which interests of the Plaintiffs assignors and exclusive licensors are taken care of in the respective countries where these organization and or institutions operate.

14. The Plaintiff avers that having been admitted into the membership of the America Society of Composers, Authors and Publishers (ASCAP), Braadcast Music Inc. (BMI), Performing Right Society Limited (PRS) South African Music Rights Association (SAMRO), Mechanical-Copyright Protection Society (MCPS) and the Musical Copyright Society Nigeria (MCSN), the named composers, authors and publishers have assigned the copyright in their musical works to ASCAP, BMI, MCPS, Harry Fox Agency and MCSN respectively for the purpose of authorizing and licensing of the public performing rights, importation, adaptation, recording, reproduction, distribution sale and broadcast rights of the works and the rights being under the exclusive control of the Plaintiff for the territory of Nigeria.

22. The Plaintiff further avers that it is the owner of the public performing rights including playing and communications to the public of the works and  other works mentioned herein for the territory of Nigeria and no other person or body could authorize such exploitation of any of the works in the territory except the Plaintiff

23. These works from the Plaintiff’s repertoire are daily being massively imported, reproduced, distributed, offered for sale, publicly performed and communicated to the public without the Plaintiff’s authorization thus causing the Plaintiff huge financial loses which may be difficult to quantify or account for at the determination of this suit.

25. Whereof the Plaintiff claims against the Defendants jointly and severally.

Instructively, the correlation between the Respondent’s claim, as per the statement of claim alluded to above, and the provisions of the copyright Act, 2004 (supra) cannot be over emphasized. Essentially, the nature and circumstances surrounding the appeal vis-a-vis the substantive suit at the lower court, are most undoubtedly relative to infringement of the copyright Act to which the Respondent claimed to be the owner, assignee and exclusive assignee under the provisions of the copyright Act, 2004. As copiously alluded to above, the learned trial Judge came to the conclusion in the ruling in question at page 357 thus-

‘From all have discussed so for, I have come to the conclusion that the plaintiff has the locus standi to institute this action as an owner assignee or an exclusive licensee of the copyright in compliance with the provision of section 15(1) of the Copyright Act and not a collecting society as provided for by section 32 B of the Act.

The objection of the learned counsel for the defendants is misconceived frivolous and without any legal basis. The motion on notice of the defendants fails and is hereby dismissed in its entirely with cost at N2,500:00 against the defendants in favour of the plaintiff’.

The various actions that may constitute an infringement of copyrights and the reliefs therefore have been enumerated under sections 15 of the copyright Act. However, the right of action provided for under section 15 of the Act is not without some qualifications or limitation. See section 17 of the copyright Act (supra) thus:-

‘Notwithstanding, the provisions of this Act or any other law, no action far the infringement of copyright or any right under this Act shall be commenced or maintained by any person –

(a) carrying on the business of negotiating and granting of license;

(b) collecting and distributing royalties in respect of copyright works or representing more than fifty owners of copyright in any category of works protected by this Act.

Unless it is approved under section 39 of this Act to operate as a collecting society or, is otherwise issued with a certificate of exemption by the commission’.

This takes me to the provisions of section 39 of the Act regarding a collecting society vis-a-vis the copyright commission. By virtue of subsection (1) of section 39 a collecting society may be formed (by the copyright commission) regarding anyone or more rights of copyright owners for the benefit of such owners, and the society may apply to the commission for approval to operate as a collecting society for (meeting) the purpose of this Act. In, the same vein, subsection (2) of section 39 provides that:

‘(2) The commission may approve a society, if it is satisfied that-

(a) It is in corporate as a company limited by guarantee.

(b) Its objects are to carry out the general duty of negotiating and granting copyright licenses and collecting royalties on behalf of copyright owners and distributing same to them.

(c) It represents substantial number of owners of copyright in any category of works protected by this Act; in this subsection owners of copyright includes owners of performers rights;

(d) It complies with the terms and conditions prescribed by regulations made by the commission under section.

(3) The commission shall not approve another society in respect of any class of copyright owners, if it is satisfied that an existing approved society adequately protects the interest of that class of copyright owners.

(4) It shall be unlawful for any group of persons to purport to performs the duties of a society without the approval of the commission as required under this section of this Act.

(5) Any person who contravenes the provisions of subsection (4) of this section, is guilty of an offence and liable on conviction to a fine of N1,000 on the first conviction and for other subsequent conviction to a fine of N2,000 or to a fine of imprisonment for a term not exceeding six months of to both such fine and imprisonment.

(6) Where the contravention is by a body corporate, it shall  be guilty of an offence and liable on conviction to a fine of N10,000 on the first conviction and N2,000 for each day on which the offence continues.

(7) The commission shall have power to make regulations specifically the conditions necessary to give effect to the purposes of this section of this Act.

A collecting society has been defined as an association of copyright owners which has-as its principal objectives the negotiating of licenses, collecting and distributing of royalties in respect of copyright works. The term group of persons, on the other hand, includes a body corporate, like the Respondent. See section 39(8) of the copyright Act (supra).

Having critically appraised the 24 paragraphs of the statement of claim copiously referred to above, I have no doubt that the Respondent for all intents and purposes actively involves itself in collecting and distributing royalties in respect of copyright works of the various authors, composers, amigers, publishers, institutions and organizations for the territory of the Federal Republic of Nigeria. The fact that the Respondent has not specifically stated in the statement of claim thereof, to be a collecting society, notwithstanding.

It is not in doubt, that prior to the amendment of the copyright Act, 1988, the combined effect of the provisions of sections 9, 10 and 15(1) thereof had conferred an unconditional and unrestricted legal rights upon an owner, assignee, and an exclusive licensee of a copyright to institute an action in the Federal High Court to seek a redness for any infringement (violation) of the copyrights thereof.

However, ever since the amendment to the copyrights Act (Amendment) Act, 1999, the exercise of the hither to unconditional right of action has become conditional. As alluded to above, a limitation has been imposed under section 17 of the Act to the effect thus:

’17. Limitation to the right of action.

(a) carrying on the business of negotiating and granting of licenses;

(b) collecting and distributing royalties in respect of copyright works or representing more than fifty owners of copyright in any category of works protected by this Act’.

The limitation imposed in action 17 (supra) is most certainly a condition precedent, which must have been met by the Respondent before it could be allowed to exercise the right of action thereof in a court of law. Thus, contrary to the contention of the Respondent’s learned counsel, the case of MUSICAL SOCIETY OF NIGERIA LTD GTE VS. ADEOKIN RECORDS (supra) is certainly not all fours with the instant case. The two cases are most certainly distinguishable from one another in so many ways than one. Firstly, the MCSN VS. ADEOKIN RECORDS case was decided basically on the earlier copyright Act 1988, which was amended first in 1992 and second in 1999.

It is not in doubt, that the copyright Act, 1988 did not have any provision requiring a copyright owner, exclusive licensee or assignee to possess a collecting society’s licence as a condition precedent for instituting an action under section 15(1) of the said Act. Thus, not surprisingly, this court aptly deemed it expedient, rightly in my view, to postulate, inter alia, at page 630 paragraphs C- F thus:

‘The provision of section 15 of the Act, shows clearly that it confers rights on owners, assignees, and exclusive licensees of copyright works, be they literary, musical or artistic. I cannot find in any part of section 15 or the whole Act, where it is stated that the rights are exclusive preserve of collecting society. In the same view, no where in the appellant’s claims has it referred to itself as a collecting society. The legal maxim, which is most apt here is expression unius personae vel re est exclusion alterius, meaning, what is expressly mentioned excludes what is not so mentioned. See Cross Statutory Interpretation, Butterworths, 1966 at page 120 – 121; AFRICAN IVORY INSURANCE CO. LTD VS. COMMISSIONER FOR INSURANCE (1998) 1 NWLR {PT. 532} 50.

To read the expression ‘collecting society’ into section 15 of the Act is to violate the principle of golden or literal rule in the interpretation of a statute; that the construction of straight and unambiguous words must be based on the ordinary plain and direct meaning of the words. See AFRICAN NEWSPAPERS {NIGERIA} LTD VS. F.R.N. (1985) 2 NWLR (PT.6) 137; ADESANYA VS. THE PRESIDENT OF NIGERIA (supra).

It is therefore my firm view that there is no basis under section 5 for considering whether or not the appellant is a collecting society for the purpose of granting him locus standi.

This is because the issue of collecting society is completely irrelevant to the appellant Per Galadima, J.C.A.

On that note, I have no hesitation whatsoever in agreeing with my learned brother Galadima, J.C.A. that in ADEOKIN RECORDDS case (supra) there was no basis what so-ever under the amended copyright Act 1988 considering whether or not the appellant was a collecting society, for the purpose of granting locus standi there to. This is definitely so because, as aptly held by Galadima, J.C.A.-

‘This is because the issue of (a) collecting society is completely irrelevant to the appellant’s position or standing by virtue of section 15 of the Act’.

Secondly, in MCSN VS. ADEOKIN RECORDS case (supra) it was held that the copyright Act 1988 was the applicable law as against the copyright Act 1999), because the cause of action arose before the amendment introducing the limitation in question in the copyright Act 1999. Contrariwise, in the present case the cause of action clearly and undisputably arose in 2007, as such making it imperative to apply the provisions of the copyright Act 2004 (supra), which like its precursor, the copyright Act 1999 contains a limitation provision under section 17 thereof thus:

’17. Limitation to the right of action.

Notwithstanding the provisions of this Act or any other low, no action for the infringement of copyright or any right under this Act shall be commenced or maintained by any person:

(a) Carrying on the business of negotiating and granting of licenses;

(b) Collecting and distributing royalties in respect of copyright works or representing more than fifty owners of copyright in any category of works protected by this Act.

Unless it is approved under section 39 of this Act to operate as a collecting society or is otherwise issued with a certificate of exemption by the Commission’.

Thirdly, in view of the very obvious fact as alluded to above, that the cause of action in the instant appeal accrued after the copyright Act 2004 or even the precursor thereof (the copyright Act 1999), neither the copyright Act 1988, nor the decision in MCSN VS. ADEOKIN RECORDS (supra) could rightly be said to be applicable to the determination of the instant appeal. To hold otherwise, would in my view tantamount to doing violence to the golden doctrine which guards against retrospective operation of statutes, and against undue inference with vested rights construed as operating only in cases or facts coming into existence after statutes were passed, unless a retrospective effect is clearly and in most unequivocal terms intended. See ADUKWU VS. COMMISSIONER FOR WORKS ENUGU STATE (1997) 2 NWLR (PT. 489) 588; ONONUJU VS. A.G ANAMBRA STATE (1998) 11 NWLR (PT.573) 304; ADEWOLE VS. ADESANYA (1988) 3 NWLR (PT.541) 175, respectively.

I have deemed it expedient to also allude to the fact that the case of AGUNMWENSE VS. AMAGHIZEMWEN (supra), cited and relied upon by the Respondent, is quite different and utterly distinguishable from the instant case. This is so, because the nature, circumstances, and issues in the two cases in question are at variance, thus the decision reached in the former case by the Supreme Court cannot reasonably be followed in the instant case. See ODUGBO VS. ABU (2001) 7 SC. (PT.1) 168 AT 202.

The case of EGUAMSEWENSE VS. AMAGHIZEMWEN (supra) had to do with the appointment of a chief the appointment of a chief by the Oba of Benin. The nature and circumstances surrounding that case was extensively alluded to by Ejiwunmi, J.S.C. (of blessed memory) in the case of ODUGBO VS ABU (supra) to the effect, inter alia thus:

‘From all I have said above, the decision of the majority in a nutshell is that the respondent was wrong to have commenced a declaratory action against the appellant, having regard to the fact that the prescribed authority had made a pronouncement upon the dispute by virtue of the provisions of section 22 of the Traditional Rulers and Chiefs Edit No. 16 of 1979’.

Per Ejiwunmi, JSC(of blessed memory) at page 187 lines 25 – 30.

As postulated above, the success of this appeal entirely depends on whether or not the case of MCSN VS. ADEOKIN (supra) is applicable thereto, as argued by the Appellants’ learned counsel. I have already explained herein above that the case in question is distinguishable from, and thus inapplicable to the instant case.

It is a trite and well established principle of interpretation that a subsequent general Act does not affect, interfere with, modify, or repeal the provision of a special Act, unless otherwise unequivocally and expressly manifested in the general Act. See BAKER VS. EDGER (1987) AC 748 at 754 (pc)’.

However, the exception to the above general rule is that where a special or a private Act is already inconsistent and repugnant with a subsequent general Act, then, court of law has an onerous duty to declare the replaced by the subsequent general Act. See BRAMSCAN VS. Cal CHESTER COPRS (1856) 6 E & B 246; GREAT CENTRAL GAS CONSUMERS CO. VS. CLARKE (1863) 13 CB (NS) 838; AND STATE VS. ADEWUNMI (1988) 3 NWLR (PT. 82) 280; ODUGBO VS ABU (supra) at 190 lines 33 – 44; 191 lines 1- 6, per Wali, J.S.C.

It is undisputable, that ever since the provision of section 17 of the copyrights Act 2004, was introduced into the Act, any other provision hitherto contained into the Act (copyrights Act 1988, 1992 & 1999, respectively) which contradicts the latter Act (2004) is deemed modified, or repeated to purposely conform therewith.

As explained there above, the fact that the Respondent did not claim in the statement of claim thereof to be a collecting society, notwithstanding. Its quite obvious, from the statement of claim thereof, the Respondent has assumed all the characteristics of a collecting society as defined by the provisions of the copyrights Act, 2004, especially section 39 of thereof.

In the light of the above, I have no doubt in my mind that by the combined effect of the provisions of sections 9, 10, 15 (1), 17, and 39 of the copyrights Act, 2004, the Respondent ought to have obtained the prior approval of the copyrights commission before instituting the action in the lower court. Thus, having failed to secure or obtain the approval of the copyrights commission prior to the instituting of the action in question, the Respondent lacks the locus standi to institute the action in the lower court.

My answer to issue No 1 is most undoubtedly in the affirmative, and thus resolved in favour of the Appellants.

ISSUES NO 2:

Issue No 2 raises the question of whether or not the Respondent, an exclusive Assignee of copyright must be a collecting society and/or have a collecting society’s licence in order to be entitled to enforce the right transferred to it by the copyright owners or assignees under the Deeds of Assignment or Reciprocal Agreements. I think there is no gainsaying the fact, that having resolved issue No 1 in favour of the Appellants, the present issue No 2 also ought to be answered in the affirmative, and resolve d in the Appellants’ favour. And I so hold.

As pointed out under issue No 1, the position of the law under the copyrights Act, 2004 is very clear on the issue. Most especially, the provision of section 17 of the said Act has made it unequivocally clear that, notwithstanding the provisions of the copyright Act (supra) or any other law for that matter,no action for the infringement of copyright or any right under this Act shall be commenced or maintained by any person-

(a) carrying on the business of negotiating and granting of licences;

(b) collecting and distributing royalties in respect of copyright works or representing more than fifty owners of copyright in any category of works protected by this Act, unless it is approved under section 39 of this Act to operate as a collecting society or is otherwise issued with a certificate of exemption by the commission.

I have herein above painstakingly alluded to the statement of claim of the Respondent, contained in pages 5 – 16 of the Record, wherein it has been clearly stated that the Respondent is a member of a number of confederate societies, and affiliated to numerous sister organizations whose individual members and assignors have assigned the copyrights in their works for protection and all administration within the territory of the Federal Republic of Nigeria, exclusively to the Respondent. I have no doubt in my mind, that the Respondent has been caught up by the web of limitation provision under section 17 of the copyrights Act, 2004. Having failed to obtain the approval or exception of the copyrights commission, as provided under section 39 of the Act, he is devoid of the necessary locus standi to institute the action in the lower court.

In the case of MCSN VS. ADEOKIN (supra) my learned brother Galadima, J.C.A. was reported to have held aptly, in my view, at page 632 paras C – D thus:

‘In view of the above, I hold that the 1999 Amendment does not apply to this appeal’.

As postulated above, the fact that the cause of action accrued prior to the amendment of the copyrights Act, 1988, I have no doubt the above holding of my learned brother was unassailable.

However, with due respect to my learned brother, the concluding part of that holding to the effect that-

‘However, assuming that the Decree applies, the clear position of the appellant’s locus standi as owner assignee and exclusive licensee remains unaffected by the Amendment Decree’.

has amounted, in my view, to an ‘obiter dictum’, This is definitely so because, as rightly held by my learned brother in MCSN VS. ADEOKIN RECORDS (supra), the copyrights Act 1999 was inapplicable to that case-

‘(a) In view of the fact that the course (sic) of action in this appeal arose before the Act was promulgated, the Act cannot apply in the determination of the matter;

(b) There is a general presumption against retrospective operation of statutes and against interference with vested rights whereby they are constituted as operating only in cases or an facts which come in to existence after the statement were passed unless, a retrospective effect is clearly intended.

See the cases of ADUKWU VS. COMM. FOR WORKS, ENUGU STATE (1997) 2 NWLR (Pt. 489) 588; ONONUJU VS. A.G. ANAMBRA (1998) 11 NWLR (PT. 573) 304; ADEWOLE VS. ADESANOYE (1998) 3 NWLR (PT.541) 175, respectively.

Instructively, the term ‘obiter dictum’ (plural obiter dicta) is a latin derivative, which denotes ‘something said in passing’. It is a judicial comment usually made in the course of delivering a judicial decision or opinion, but one that appears to be neither necessary, nor even expedient to the decision in the case at hand. Thus, an obiter dictum is said to be unprecedential (not binding) although it may be considered persuasive. It is very often shortened to ‘dictum’ or less commonly ‘obiter’. See BLACKS’S LAW DICTIONARY, Eighth Edition 2004 at page 1102 thus:

‘Strictly speaking an obiter dictum is a remark made or opinion expressed by a judge, in his decision upon, a cause, by the way – that is, incidentally or collaterally, any statement of law enunciated by the judge or court merely by way of illustration, argument, analogy, or suggestion… In the common speech of lawyers, all such extrajudicial expressions of legal opinion are referred to as ‘dicta’, or ‘obiter dicta’.These two terms being used interchangeably. ‘William M. Lite et al., Brief making and the use of Law Books 304 (3rd ed. 1914)’.

ISSUE NO 3:

The issue No 3 raises the vexed question of whether or not the judgment in the case of MCSN VS. ADEOKIN RECORDS (supra) was based solely on the copyright Act, 1988, devoid of the Amendments of 1992 and 1999. I have no hesitation whatsoever in holding that in view of the answers to both issues Nos 1 & 2 in the affirmative, the answer to issue No 3 is most undoubtedly in the affirmative. The said issue No 3 is accordingly hereby resolved in favour of the Appellants.

Hence, in the light of the above postulation, I have no hesitation whatsoever in coming to the inevitable conclusion that the instant appeal is meritorious, and same is hereby allowed by me. The ruling of the lower court dated 5th August, 2009 is hereby set aside. Consequently, Respondent’s claim in the suit No FHC/L/CS/713/2007 is hereby struck out.

The Appellants are entitled to N30,000 as costs against the Respondent.

PAUL ADAMU GALINJE, J.C.A.: I read in advance the judgment just delivered by my learned

brother, Saulawa J.C.A, and I agree.

REGINA OBIAGELI NWODO J.C.A.: I had a preview of the Judgment just delivered by my learned brother, SAULAWA, J.C.A. I agree with the reasoning contained therein and the conclusion arrived thereat.

The right or competence to institute proceedings in a court of law for redress or assertion of a right enforceable at law is not unlimited. The legal capacity to institute proceedings in a court will only be accorded to a Plaintiff who shows that his Civil rights and obligations have been or are in danger of being violated or affected. See Ojukwu v. Ojukwu (2008) 12 SC (pt.111) pg. 1

The constitution of the Federal Republic of Nigeria confers right of access to any person whose right has been infringed upon or threat to adversely affect such right. Nevertheless, where there is a statutory provision from where such a right enures, the conditions precedent to the exercise of that right becomes a limitation to the direct access to court.

S.17 of the Copyright Act (2004) stipulates as follows:

’17 Limitation to the right of action.

Notwithstanding the provisions of this Act or any other law, no action for the infringement of copyright or any right under this Act shall be commenced or maintained by any person –

(a) Carrying on the business of negotiating and granting of licenses;

(b) Collecting and distributing royalties in respect of copyright works or representing more than fifty owners of copyright in any category of works protected by this Act.

Unless it is approved under Section 39 of this Act to operate as a collecting society or is otherwise issued with a certificate of exemption by the Commission’.

The above provision must be construed to give effect to its natural and grammatic meaning as the words therein are clear and unambiguous. It is indisputable that the purport of S. 17 is to limit the right of action under the copyright act of any person who is described or which description falls within the category of collecting society.

In my respectful view, S.17 stipulates a condition precedent as far as institution of action for infringement of copyright or any right under the Act. The provision on limitation is confined to a group of persons not a general provision under the Act. Therefore compliance with this condition precedent to the institution of an action by any person carrying on business of negotiating and granting of license or persons collecting and distributing royalties in respect of copyright works is fundamental to the competency of the action and the court to proceed with the suit.

The Respondent in the instance case has deposed to facts in their pleadings on their activities and operation and the origin of the rights they exercise. This facts falls within the category of the description ascribed to collecting society in the Copyright Act. The Respondent to seek redress in court under any of the provisions in the Copyright Act must comply to the condition precedent set out under S.17 of the said Act. There is no evidence presented by them to show they obtained approval of the Copyright Commission nor a certificate of exemption presented to exempt them from the mandatory condition precedent to the institution of the present action. S.17 of the Act does not, oust the subject matter Jurisdiction of the court or derogation from the rights of the citizen, it only postpones the time for instituting a suit which means go and comply to the provision and get back to the court. Just like the Respondent can take advantage of the provision in the Copyright Act by representing Owners of Copyright he has to comply to the limitations prescribed in the statute. The Supreme Court on access to the court in Magaji v. The Nigerian Army (2008) 2 – 3 SC (pt.11) 146.Ogbuagu J.S.C.

‘Access to the court, it is said, means approach or means of approach to the court without constraint per Karibi-Whyte, J.S.C, in Captain Amadi v. NNPC (supra), at page 111 of the NWLR. A condition precedent is defined as one which delays the vesting of a right until the happening of an event. See Prince Atolagbe and Captain Amadi’s cases. It has to be borne in mind always and this is settled, that the constitutional right of access to the court, does not however, preclude statutory regulations of the exercise of the right’.

For all I have said above and the fuller reason in the leading Judgment I am of the view that the instant appeal has merit and should be allowed. I allow the appeal and abide by the order in the lead Judgment inclusive the order as to cost.

III. CASES REFERRED TO

The following cases are referred to in the judgement:

IV. JUDGEMENT

APPEAL from the judgement delivered in the Federal High Court in Lagos by Honorable Justice J.E. Shakarho, on August 5, 2008 (Suit No. FHC/L/CS/713/2007).

The appeal was successful and as such the ruling of the lower court in Suit No. FHC/L/CS/713/2007 was set aside. The court ruled that the Defendants/Appellants are entitled to cost of N30,000.

“Hence, in the light of the above postulation, I have no hesitation whatsoever in coming to the inevitable conclusion that the instant appeal is meritorious, and same is hereby allowed by me. The ruling of the lower court dated 5th August, 2009 is hereby set aside. Consequently, Respondent’s claim in the suit No. FHC/L/CS/713/2007 is hereby struck out.”

NLIPW Logo

Print Friendly, PDF & Email
FILE A TRADEMARK