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Larry Izamoje & Ors v. Hensen Trust Ltd.

Court of Appeal

Judgement delivered on Thursday, May 24, 2012
Citation: 55 NIPJD [CA. 2012] 601/2007
Suit No. CA/L/601/2007      Jurisdiction: Nigeria

BEFORE THEIR LORDSHIPS

KUMAI BAYANG AKAAHS, J.C.A. (Delivering the Lead Judgement)
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
RITA NOSAKHARE PEMU, J.C.A.

BETWEEN

1. LARRY IZAMOJE (Carrying on business under the name and style of Brilla F.M.)
2. DAAR COMMUNICATIONS LIMITED [Owners of the African Independent Television (AIT)]
3. BRILLA BROADCASTING SERVICE LIMITED…………………………………………………………………..Appellants

AND

HENSEN TRUST LIMITED……………………………………………………………………………………………….Respondents

I. FACTS

The Plaintiff who is the Respondent in this appeal instituted an action in the Federal High Court against Mr. Larry Izamoje who carries on business under the name and style of Brilla F.M and Daar Communications Limited [the Owners of the African Independent Television (AIT) (now 1st and 2nd appellants) being the cost of the airtime slots appropriated by the defendants on the 30th of October 2004 or in the alternative the same amount as aggravated damages for loss of income by the plaintiff in consequence of the illegal live telecast and advert placements by the defendants and sponsor agencies acting at their instance in the 2004 CAF Champions League and general damages in the sum of N500,000 for legal expenses and unforeseeable costs incurred by the actions by the plaintiff in consequence of the action of the defendants. Learned counsel for the 1st defendant filed two Notices dated 1st December 2004 on his behalf namely:

1. Notice of Conditional appearance; and

2. Notice of preliminary objection. In the Notice of Preliminary Objection, learned counsel sought for an order dismissing the entire Suit of the plaintiff and in the alternative he asked for an order striking out the 1st defendant’s name from the suit. This prompted the plaintiffs counsel to file a motion on 10th January 2005 whereby he sought for the following reliefs:

1. An order for leave to join Brilla Broadcasting Services Limited (that is the party sought to be joined) as a necessary and proper party to this suit, for the purposes of determining the issues arising between the parties hereto

2. An order for leave to effect such necessary amendments to reflect the new Party in pursuance to prayer 1 above 3. An order to amend the Plaintiff/Applicant’s Writ of Summons, Statement of Claim and particulars of claim.

The learned trial judge heard arguments on the preliminary objection and in his ruling delivered on 26th July 2005, he held that from the nature of the claim before the court the issue in contention relates to broadcast which falls within the jurisdiction of the court. He consequently assumed jurisdiction to entertain the Suit. The defendants were dissatisfied with the ruling and appealed against it.

Without expending too much time on the arguments of counsel, the law is that jurisdiction is determined by the Claimant’s Writ of Summons and Statement of Claim. In paragraphs 2,6,7,8, 9, 10, 11, and 12 of the Statement of Claim the plaintiff averred as follows:-

2. The plaintiff holds an Exclusive Marketing and Transmission Rights to CAF (Confederation of African Football) organized Champions Leagues Football Tournament for 2004 up till 2008, for the Nigerian territory having acquired same from LCZ (La Chaine) CAF’s sole Agent for the African sub-region.

6. Notwithstanding the Plaintiffs exclusive Right for the Marketing and Transmission of CAF organized Champions League Football Tournaments for the Nigerian territory, the 1st Defendant, on Saturday the 30th of October, 2004 carried live Transmission of the CAF Organized ENYIMBA Football Club and Esperance of Tunisia Match without the authority of the Plaintiff, and in the process carried advertisement slots for its client’s Pepsi Cola Brand.

7. The 2nd Defendant on its African Independent Television Live Telecast on the same date and time (that is 30 /10 /2004) also aired the Enyimba/Esperance match, without the consent of the Plaintiff and in the process carried advertisement for its client’s Pepsi Cola Brand.

8. The Plaintiff avers that the unauthorized live telecast and advertisement slots appropriated by the Defendants, not only infringed on its exclusive Marketing Right for The Tournament, it has also resulted in the loss of N10 Million which is the cost of the air time Advert slots for the match, for Media Organizations desiring to exclusively carry their own advertisement, during the live telecast.

9. The plaintiff avers that it suffered pecuniary losses to the tune of N10 Million due to the appropriation of airtime slots that would otherwise have been available to legitimate Advertisers and sponsor Agencies who would have paid for same to the Plaintiff.

10. The plaintiff also avers that although the Defendants are Broadcasters having procured their licenses from the National Broadcasting Commission, the Broadcast Code and the National Broadcasting Commission Act does not entitle them to employ pirated materials, illegally procured or exclusive properties of third parties in their Broadcast.

11. At the trial of this action, the Plaintiff shall rely on the following for their full terms and effects:
a) The documents authenticating the Plaintiffs exclusive right for the marketing of CAF Champions Leagues,
b) press cuttings, Releases, Notices and Publications notifying the public of the Plaintiffs Exclusive Right of’ Marketing of the Tournament referred to in paragraph (a) above.
c) Video clips, Recordings, Documentary and Materials authenticating the unauthorized transmission of the Enyimba/Esperance matches by the Defendants.

12. The plaintiff claims from the defendants, jointly and severally:
c) Special Damages in the sum of N10 Million, being the cost of the airtime slots appropriated try the Defendants, on the 30th of October 2004. OR IN ALTERNATIVE the same amount as Aggravated Damages for loss of income by the Plaintiff in consequence of the illegal live telecast and advert placements by the Defendants and sponsor Agencies acting at their instance, in the 2004 CAF Champions Leagues.
b) General Damages: In the sum of N500,000 for Legal expenses and unforeseeable costs incurred by the actions by the Plaintiff in consequence of the action of the Defendants.

Section 251(i)(f) of 1999 Constitution (as amended) states –
“251- (1) Notwithstanding anything to the contrary contained in this Constitution and in addition to by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters-

(f) any federal enactment relating to copyright patent’ designs, trade marks, and passing – off, industrial designs and merchandise marks, business names, commercial and industrial monopolies, combines and trusts, standards of goods and commodities and industrial standards.”

If one examines the claim of the Plaintiff, it will be seen that it is anchored on the infringement of the exclusive Right for the Marketing and Transmission of CAF organised champions League Football Tournaments for the Nigerian territory. In other words the plaintiff is claiming a commercial monopoly over the marketing and transmission of CAF organised Champions League Football Tournaments for the Nigerian territory.

To this end therefore the Plaintiff filed his action at the Federal High court and I am of the firm view that the Federal High court had the jurisdiction to entertain the claim.

I find that the appeal lacks merit and I dismiss it with N50,000.00 costs against the 1st and 2nd – appellants in favour of the Respondent.

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I had read the draft of the judgment just delivered by my learned brother, the Hon. Justice K.B. Akaahs, JCA, the briefs of argument of the learned counsel to the respective parties vis-a-vis the record of appeal, as a whole. I concur with the reasoning and conclusion reached in the lead judgment, to the effect that the present appeal is unmeritorious.

Hence, I equally hereby dismiss the appeal and abide by the N50,000.00 costs accorded in favour of the Respondent.

RITA NOSAKHARE PEMU, J.C.A.: I have had a preview of the judgment just delivered by my brother KUMAI BAYANG AKAAHS J.C.A.: I agree entirely with his reasoning and conclusion that the Federal High Court it is, that had jurisdiction to entertain the claim.

I also abide by the consequential order made that the appeal is devoid of merit and same is dismissed by me. N50,000 costs in favour of the Respondent and against the 1st and 2nd Appellants.

Appearances: O.O.N. Olabisi for the Appellant

                        Tunde Nordi for the Respondent

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