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Musical Copyright Society of Nigeria Ltd./Gte v. Adeokin Records

Court of Appeal

Judgement delivered on Monday, September 27, 2004
Citation: 47 NIPJD [CA. 2004] 498/1997
Suit No. CA/L/498/97      Jurisdiction: Nigeria

BEFORE THEIR LORDSHIPS

SULEIMAN GALADIMA, J.C.A (Delivering the Lead Judgement)
PIUS OLAYIWOLA ADEREMI, J.C.A.
ABUBAKAR ABDULKADIR JEGA, J.C.A.

BETWEEN:

MUSICAL COPYRIGHT SOCIETY NIG. LTD./GTE……………………….Appellant
And
1. ADE OKIN RECORDS
2. ALHAJI SAKA ALAGBADA (Trading under the name and style of Adeokin Record)………….Respondents

Collecting Societies The court considered whether or not a person, (both natural and artificial) particularly a copyright owner must be a collecting Society in order to enjoy the right to enforce the rights attaching to copyright owners, assignees and exclusive licensees properly so called under Section 15 or the Copyright Act, 1988.

I. FACTS

This case is an appeal brought by Plaintiff/Appellant — Musical Copyright Society Nigeria Ltd./Gte against the Ruling of UKEJE J. as she then was, of the Federal High Court, Lagos, delivered on 9/7/97.  By a Motion on Notice dated 8/11/96, pursuant to Order 33 Rule 1 of the Federal High Court (Civil Procedure) Rules, the Defendants/Respondents sought for an order striking out the substantive action in its entirety brought against it for infringement of copyright, on the ground that the appellant lacked the prerequisite locus standi to institute the action.

A similar application had been brought on 29/4/96 by the Respondent praying for an order, inter alia, discharging the interim order and setting aside of the execution of same on the ground that the court lacked jurisdiction to try the suit as proper parties are not before it. It would appear this application was struck out together with all other pending interlocutory applications in order to pave way for the hearing of the suit on the merit.

Therefore this appeal flows directly from the considered Ruling of the lower Court given on the said 9/7/97 wherein the learned justice upheld the respondent’s application and vacated her earlier order.

It is against this Ruling that Appellant have field this appeal carrying EIGHT grounds. SEVEN issues were formulated for the determination of this appeal in the following terms:

i.Whether or not the Appellant as owner, assignee and exclusive license 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(1) of the Copyright Act as amended and the Deed of Assignment (admitted as Exhibit B)

ii.Whether or not a person, (both natural and artificial) particularly a copyright owner must be a collecting Society in order to enjoy the right to enforce the rights attaching to copyright owners, assignees and exclusive licensees properly so called under Section 15 or the Copyright Act, 1988.

iii. Whether there is basis for the finding by the learned trial judge that the Appellant is a collecting society for the purpose of determining whether or not it has locus standi or at all.

iv. Whether or not the learned trial judge in striking out the Appellant’s claim did not derogate from the Appellant’s right under SS.5 and 15 of the Copyright Act, as amended; Section 37 of the 1979 constitution; Section 44 of the 1999 Constitution; and Articles 10 and 14 of the African charter on Human and People’s right enforceable in Nigeria by virtue of Section 12(1) of the 1979 Constitution and 1999 Constitution.

v. Whether or not the provision of S.15 of the copyright Act is in conflict with S.32B in some material particular do not derogate from the purport and general intendment of copyright legislation in Nigeria.

vi. Whether in all the circumstances of this case, the learned trial judge did not abdicate jurisdiction by striking out the Appellant’s claim when on the basis of the materials before the Court together with the relevant statutes there was sufficient material for the court, that is, the Federal High Court to assume jurisdiction hear the Appellant’s claim.”

On 5/11/2003 this appeal came up before us for hearing. Learned Counsel for the Appellant, Adewopo Esq. referred us to the Appellant’s Brief of argument filed on 4/10/2000. He adopted same and urged that Appeal be allowed.

The Records of this appeal show that this appeal was filed on 28/11/97. The Records of Appeal was admitted into this Court by virtue of a motion for departure from the Rules on 7/6/2001. Respondent failed to file their brief of argument. On 28/10/2002 an application brought by the appellant setting down the Appeal for hearing on Appellant’s brief was granted. Hence, this appeal is being considered only on Appellant’s brief of argument and the issues, I must observe certain flaws in the Appellants brief. The grounds of appeal as couched and framed are repetitive, verbose and argumentative with the particulars unnecessarily prolix. The grounds could have been more elegantly drawn. To my mind the litany of issues presented before us for consideration just to meet the number of grounds of appeal filed are inelegant and unnecessary. Giving the simple problem involved in this appeal, I am of the view that a single issue could be formulated in the following terms.

“Whether there is basis for the finding by the learned trial judge that the Appellant is a collecting society for the purpose of determining whether or not it has locus standi at all.

Essentially the issues in this appeal are all about copyright law. The substantive action at the lower Court against the respondent was for infringement of copyright to which the Appellant claimed was the owner assignee and exclusive licensee under the provisions of the Copyright Act of 1988, as amended. The learned trial judge in her considered Ruling held that the Appellant having not complied with the entire provisions of section 32B (2) particularly S. 32 (2) (d) and consequently not having been approved as a collecting society by the copyright council in terms of S.32 B (2) notwithstanding the appellant’s compliance with S.32 B (1) and S.32 B (2) (a) (b) and (c) of the Act, the Appellant lacks the locus to institute this suit. Consequently, the Court struck out the Appellant suit.

It is not in dispute that the Appellant commended the action in its capacity as the “owner/Assignee and exclusive licensee of the Copyright in the musical work “OJUMORE,” (a traditional folklone (see paragraphs 2 and 4 of the Statement of Claim; paragraph 2 of the Affidavit I support of the motion on notice and paragraph 8 of the affidavit in opposition).

I have observed that the issues in this appeal are copyright law. It is essentially statutory, although common law still remains an important source of law. The copyright statute in Nigeria is the copyright Act, 1988 as amended by the Copyright (Amendment) Act. 1992 and further amended new copyright (Amended) Act 1999. It is the 1988 Copyright Act, the Federal High Court Act (as amended) the 1979 Nigeria Constitution; the African Charter on Human and Peoples rights and the relevant International Copyright Convention and Treaties for protection of Copyright works to which Nigeria is signatory, particularly the Berne Convention for Protection of literary and musical works-all these statutes that can be considered relevant and applicable to the determination of the issues raised in this appeal.

I have carefully studied sections 9, 10 and particularly 15 of the Copyright Act 1989 (then applicable). The combined effect of all these provisions expressly confers legal rights in copy right to an “owner, assignee or an exclusive licensee of the Copyright.”

Section 15 (1) provides-

“Subject to this Act, infringement of copyright shall be actionable at the suit of the owner, assignee or an exclusive licensee of the copyright, as the case may be in the Federal High Court exercising jurisdiction in the place where the infringement occurred, and in any action for such an infringement all such relief by way of damages injunction accounts or otherwise shall be available to the plaintiff as is available in any corresponding proceedings in respect of infringement of other proprietary rights.”

In effect for a person to be a legal owner of copyright for the purposes of vesting requisite locus, such must fall into any of the following categories, namely, the author of the work himself; the assignee; the licensee. It is therefore only any of these legally authorized or accredited owners that can seek redress in copyright in the Court law.

Furthermore, in his book “INTELLECTUAL PROPERTY” published by Sweet and Maxwell 3rd Edition (1996), W.R. Cornish resolves the question which often arises about right to sue in copyright infringement case thus:

“The obvious person to bring proceedings for infringement of one of the statutory types if intellectual property is the owner at law (or one of them). A person with a purely equitable title (under a trust or a specifically enforceable contract) is permitted to bring a motion of interlocutory relief, but he may not proceed further without joining the legal owner.”

Appellant as owner assignee and exclusive licensee of the Copyright in the allegedly infringed work has legal right and indeed locus standi statutorily recognized which ought to be protected and adjudicated upon by the lower Court. Where a statute confers on a Plaintiff, the right to sue, a Court of law has not the jurisdiction to deny him of the standing to sue. A statutory right of plaintiff to sue abrogates a common law principle to the contrary, that is, not to sue. See NNAMANI v. NNAJI (1999)7 NWLR (Pt. 610)313 at 330; ECWA PRODUCTIONS v. AKANDU & ANOR (unreported) Suit No. FHC/PH/1985 delivered on 31/7/86 DAGAZAU v. BORKI INT’L LTD (1999)7 NWLR (Pt. 610)293. In the instant appeal it is the Appellant whose right has been allegedly infringed as evidenced in the deed of assignment and clearly protected by the express provisions of the Copyright Act.

Appellant is said not to have sufficiently shown interest in this matter in order to determine his locus standi.

Locus standi or capacity to institute proceedings in a Court of law connotes act of standing which is the right of a person to appear and be heard on the question before any Court or tribunal without any inhibition obstruction or hindrance from any person or body whatsoever. See the following cases: ADESANYA PRESIDENT (1981)2 NCLR 358; THOMAS v. OLUFOSOYE (1986)1 NWLR (Pt. 18)667.

Locus standi as expressed in the doctrine of sufficient interest is explained in a chain of decision. In BUSARI v. OSENI (1992)4 NWLR (Pt. 237)557, the term “sufficient interest” is said to be broad and generic term that lacks a precise and legal meaning. It is better determined in the light of the facts and circumstances of the particular case. In arriving at a decision one way or the other, the court will be guided by the overall interest of the parties in the litigation process in the absence of enabling statute.

Guided by the above principles of law and the materials placed before the lower court it can well be said that the Appellant has locus standi in the matter of infringement of the copyright under which it is an assignee and exclusive licensee under duly executed deed of assignment. In my view the locus standi of the Appellant was unassailable for the learned trial judge to have held otherwise.

Related closely to the issue already resolved is the question whether or not a copyright owner must be a “collecting society” so as to acquire the locus standi to enforce the rights attaching to copyright owners, assignees and exclusive licensees under section 15 of the copyright Act, 1988.

Learned Counsel for the Appellant has briefly considered the meaning and purport of the collecting society within the context of collective administration in copyright law and practice. I will say no more on that. Further, however, a collecting society has been defined under S.32 B (8) of the Copyright (Amendment) Act 1992 as “an association of copyright owners which has its principal objectives of negotiating and granting of licenses, collecting and distributing of royalties in respect of copyright works. Now, the question is whether the locus recognized under the Act is that of a collecting society only so as to justify the court’s finding that the Appellants is a collecting society.

Above definition has made it clear that a collecting society is not the same as owner, assignee or exclusive licensee of copyright. Ownership of copyright is defined under S.9; “assignment” under S.10 and “exclusive licensee under S.39 of the Act.”

Under S.39 of the Act, “ exclusive license” means a license signed by or on behalf of a copyright owner, authorising the licensee to the exclusion of all other persons (including the person granting the license) to exercise any right which would otherwise be exercisable exclusively by the copyright owner.

The provision of S.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 EXPRESSIO UNIUS PERSONAE VEL RE EST EXCLUSIO ALTERIUS, meaning, what is expressly mentioned excludes what is not so mentioned. See Cross Statutory Interpretation, Butterworth’s 1976 at page 120-121; AFRICAN IVORY INSURANCE Co. LTD. v. COMMISSIONER FOR FINANCE (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. v. THE F.R.N. (1985)2 NWLR (Pt. 6) ADESANYA v. THE PRESIDENT OF NIGERIA (supra).

It is therefore my firm view that there is no basis under S.15 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’s position or standing already secured by virtue of S.15 of the Act.

I am afraid, the learned trial judge, and I, is totally on different wavelength on this issue. By striking out the Appellant’s claim at this stage, the constitutional right of the Appellant is clearly violated or denied in view of section 15 of the Act as amended, and the Deed of Assignment.

Section 37 and 40 of the 1979 constitution (then applicable) and section 44 of the 1999 constitution and Articles 10 and 14 of the African Charter on Human and people Rights (enforceable in Nigeria by virtue of section 12 (1) of the 1979 and 1999 Constitution) guarantee protections of the Appellant’s property except in justifiable circumstances, precluded from infraction. I have observed without saying more that by virtue of Deed of Assignment certain owners, assignees and exclusive licensees of the copyright in musical work which was alleged infringed upon, had assigned their intellectual property right in the nature of copyright in the musical work concerned to the appellant.

I commend the effort of learned counsel for the Appellant made in his brief. He has drawn our attention to the 1999 Second Amendment, after the 1992 Amendment to the principal Act of 1988, namely the Copyright (Amendment) Decree No. 42 1999 which makes further amendments to the earlier Act; particularly S.15A which amends S.15 of the principal Act. It provides:-

“Notwithstanding the provisions of this Decree or any other law, no action for the infringement of Copyright or any right under this Decree shall be commenced 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 50 owners of Copyright in any category of works protected by this Decree; unless it is approved under S.32B of this Decree to operate as a collecting society or otherwise issued with a Certificate of exemption by the Commission”

This provision appears to limit the right of action in copyright action on infringement cases to a class of person or persons known and approved as collecting society under S.32 B, although other class of persons are not excluded.

I agree with the learned Counsel for the Appellant that this provision and indeed the entire Act is inapplicable to the present appeal. I say this, in my view, for the following reasons:-

a.  In view of the fact that the course 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 construed as operating only in cases or on facts which come into existence after the statues were passed unless, a retrospective effort is clearly intended.

See: ADUKWU v. COMM. FOR WORKS, ENUGU STATE (1997)2 NWLR (Pt. 489)588; ONONUJU v. A-G ANAMBRA STATE (1998)11 NWLR (Pt. 573)304, ADEWALE v. ADESANOYE (1998)3 NWLR (Pt. 541)175.

There is no express repeal of any part of S.15 or in its entirety with regards to the right of action vested on owners, assignees and exclusive licensees of copyright by S.15A or the Amendment Act 1999. The right of action vested under S.15A does not take away the right of action vested under S.15 of the Act.

In view of the foregoing I hold that the learned trial Judge was wrong in holding that the Respondents. Consequently, the order of the lower Court made on 9/7/97 is hereby set aside. The suit is hereby remitted to Hon. Chief Judge of the Federal High Court for reassignment to another judge for a rehearing.

PIUS OLAYIWOLA ADEREMI J.C.A.

I have read in advance the judgement of just delivered by my learned brother, Galadima J.C.A. I agree with him that the appeal has merit. I adopt same as my judgment as I have nothing to contribute. I abide by all the consequential orders contained in the lead judgment.

ABUBAKAR ABDUL-KADIR JEGA. JCA

I have had the privilege of reading in advance the judgement of my learned brother GALADIMA JCA, just delivered in this appeal. I am in total agreement with the reasoning and conclusion in the lead judgement that the learned trial judge was wrong in holding that the appellant lacked locus standi to institute and maintain the action against the Respondent.

I too allow the appeal and abide by the consequential orders made in the lead judgement.

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