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

Federal High Court

Ruling delivered on Wednesday, July 9, 1997
Citation: 40 NIPJD [FHC. 1997] 216/1996
Suit No. FHC/L/CS/216/96      Jurisdiction: Nigeria

Ruling delivered by Honourable Justice R.N. Ukeje

 Appearance: Bambo Adewopo for the Plaintiff/Respondent.
Bayo Adelaja (with Tunde Okunowo) for the Defendants/Appellants.

BETWEEN:

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

 I. FACTS

This Ruling flows from a Motion on Notice dated 8th November 1996, and filed on 21st November 1996, brought by the Defendant/Applicant pursuant to Order 33 rule 1 of the Federal High Court (Civil procedure) Rules praying for:-

1. An Order striking out this suit in its entirety on the ground that that the Plaintiff herein lacks the requisite Locus Standi to institute the action.

2. And for further and other Orders.

The Motion is supported by an 11-para Affidavit to the effect that the Plaintiff is not an approved collecting society in accordance with the provisions of the Copyright Act 1988, and therefore has no authority to represent music rights owners or extort payment from users of music in Nigeria.

Therefore, that this Court’s interim order was obtained by the Plaintiffs by fraud.

Annexed are 3 documentary exhibits, EXH. DA1, DA2 and DA3.

The Plaintiff replied with a 17 paragraph affidavit in opposition, sworn to by one Mayowa Ayilara, the General Manager of the Plaintiff/ Respondent Company and Copyright Administrator of the Musical Society of Nigeria.

The crux of the “Affidavit in Opposition” is that the Preliminary objection should be dismissed because is a diversionary tactics to delay and eventually evade the course of justice in this matter, which is clear and unambiguous and which the Defendant has already admitted to the Plaintiff’s Locus to institute this suit herein (per paras 2 of the Affidavit in support).

That the Plaintiff, as owner and assignee of the Copyright in the work has instituted this action; and that the correspondence of the Copyright Commission impugning the Plaintiff’s legal authority goes to no issue. And that the Defendant has not denied the substance of the charge, that is, the infringement of the plaintiff’s Copyright.

Arguing the Motion, Adelaja, and Learned Counsel on behalf of the Defendant/Applicant reiterated the suit herein and argued that the Plaintiff approached this Court pursuant to Section 22 of the Copyright Act without disclosing relevant and material facts and without conforming to the provision of the Act, as amended by the Copyright (Amendment) Decree 1992. That Section 30 of the Copyright provides that –

“The (Copyright) Council shall have the power to grant compulsory licenses in accordance with the Schedule to this Decree; and Section 32(A) and (B) provide as follows:-

The Council shall, in any case in which an application is made to the Council, constitute a Copyright Collecting Society.”

Learned Counsel further argued that under the Act, a corporate body cannot collect royalty on behalf of the artists unless and until it is licensed as a Collecting Society.

Learned Counsel therefore submitted that to the extent that the Plaintiffs are not licensed by the Council, then the entire suit it is fraudulent, as well as it is incompetent as the plaintiffs are incompetent to maintain the same.

Learned Counsel referred to the decision of Odunowo, J, in a similar application in a suit involving the Plaintiff in suit FHC/L/CS/934/95. Learned Counsel sought to reply on that decision (Copy supplied).That case, as the Plaintiff has not complied with the provisions of the. Copyright Act (As amended).

That the failure to make relevant disclosures vitiates the very essence of the Anton Pillar Order.

That was the Defendant’s application.

Adewopo, Learned Counsel on behalf of the Plaintiff/Respondent, submitted that it is trite that in determining the issue of Locus Standi, the Court looks at the cause of action and the facts of the case, as contained in the Plaintiff’s pleadings, the Particulars of Claim, the Statement of Claim and NOT at the Defendant’s Reply. He cited Thomas v Olufosoye (1986)1 NWLR (Pt. 18)669 at 679, per the Supreme Court.

That consequently, the Plaintiff’s cause of action flows from the Statement of Claim already filed and before the court.

That it is therefore spurious and misconceived to base the Plaintiff’s Locus to sue on an extraneous consideration, such as the issue of “Collecting Society” under Section 32(A) and the compulsory licensing under Section 30 (A), Learned Counsel therefore submitted that like the antecedent application which was later withdrawn, This application is merely a ploy to delay the trial of this case.

That the Plaintiff in this suit had sued as the owner, assignee and exclusive license of the Copyright in this works allegedly infringed; and that infringement of copyright under Section 15 of the Copyright Act, as amended, is actionable at the instance of the owner, assignee or exclusive licenses of the Copyright.

That provision confers the required Locus Standi on the Plaintiff or any person entitled to the Copyright.

That the assignment of the Copyright as per Exhibit B annexed to the Counter-Affidavit brings the Plaintiff within the purview of Section 15, as an assignee.

That the Plaintiff does not purport to be a Collecting Society, so as to make Section 30(a) or 32(b) applicable.

That Copyright assignment relationship is a contractual agreement which the Court is enjoined to enforce and protect.

That a Copyright owner includes the Author, the assignee or the licenses; and it is only those persons that can seek to redress any infringement in the copyright in a Court of law. In this regard, Learned Counsel cited American Motion Picture Export Co. Ltd. v Minnesota Nig. Ltd. (1981) FHCLR, a decision that was further confirmed in ECWA Productions Ltd. v. Akande FHC/CA/19/85 of 31st July 1986, Unreported.

It is only Section 15 which confers the right of suit in an exclusive owner of Copyright.

That Section 30(A) of the Copyright Act is irrelevant to these proceedings since it relates to the grant of licenses pursuant to the 4th Schedule which relates to translation and production of certain works; and granted for educational and research purposes only.

That the purpose of Section 30 (a) of the copyright (Amendment) Act was to facilitate the doing of such acts where the Author may not be available, for which reason the Copyright Licensing Panel was established under that Section, for such purpose.

That the work the Defendants are alleged to have infringed are not the subject of a compulsory licensing, therefore he submitted, Section 30(B) is totally irrelevant to this Suit; so also is Section 32(B) of the Copyright Amendment Act, totally irrelevant and immaterial to this action as the particulars of Claim show that the action is one by an Owner/Assignee against an alleged infringer.

That Section 32(B) does not intend to confer a Locus Standi or remove the same from a legal owner of copyright, like the Plaintiff, whose right has been infringed. That Section 32(b) merely establishes a legal framework for the collective administration of copyrights in the copyright industry.

That para 6 of the affidavit which exhibited Exhibits DA2 and Exhibit DA3 are not admissible under Section 91 of the Evidence Act, being a document made by a person interested in this suit, namely, the Nigeria Copyright Commission, and addressed to a party to this suit, based on an enquiry designed to assist a party to this suit.

He urged the Court to expunge the said exhibit. He cited in support Aiyegbesuyi v R.T Briscoe (1987)3 NWLR (Pt. 59) 84.

That in para 9 of the counter-affidavit, the Plaintiff avers to its legal capacity to sue as Owner/Assignee of the copyright and whether or not the Plaintiff is collecting society Section 32(b) is irrelevant as it does not affect its right to sue. Learned Counsel therefore submitted that the application of the Defendant herein is misconceived, vexatious and frivolous and clearly intended to deprive the Plaintiffs of the fruit of their labour as intellectual property owners. He therefore urged the Court to dismiss this suit with substantial costs. Adelaja, Learned Counsel on behalf of the Defendant/Applicant tendered no further reply.

That is both Counsels’ submission herein now, the following issues arise for determination in this Ruling:-

1. Does the Plaintiff/Respondent herein have the Locus Standi to institute and maintain the substantive suit herein, and in this regard.

a. Is it essential that the Plaintiff is registered as Collecting Society in accordance with the Copyright Act, as amended, and Exhibits DA2 and DA3 (letters written to and reply from the Nigeria Copyright Commission?)

b. Was the Interim Exparte Order of this Court made on 20th March 1996 obtained improperly?

c.  Whether the Plaintiff/Respondent is a juristic person, and consequently, whether this matter is properly constituted; and

2.  Depending on the answer to quaere 1, supra, to make Consequential Orders.

1.   Whether the Plaintiff has the Locus Standi to institute this Suit.

There is no dispute between the Parties but that the Plaintiff commenced this suit in its capacity as the “Owner/Assignee and exclusive licensee of the copyright in the musical work “OJUMO RE”. (vide para 2 of the Affidavit in Support and para 8 of the Affidavit in Opposition. See also paras 2 and 4 of the Statement of Claim).

Now, by Section 15(1) of the Copyright, it is provided that 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.”

By paragraph 3 of the Affidavit in support of the Motion of Notice, it is averred that.“

3. That the Applicant Company is the owner and assignee of the reproduction (mechanical) and public performing rights including adoption rights, in “OJUMO RE” originally written, composed, arranged, performed and recorded by Alhaji Fatayi Olowonyo;”

And in paras 2 and 4 of the Statement of Claim, it is averred that –

“2. That Plaintiff is the owner, assignee and exclusive licensee of the performing, reproduction and other rights in musical works contained in repertoire, within the territory of Nigeria.”

“4. The Plaintiff is the owner, assignee and exclusive licensee of the copyright, including reproduction (mechanical) and public performance rights and also adaptation rights in the works “OJUMO RE” originally written, composed, arranged, performed and / or recorded by Alhaji Fatai Olowonyo and contained in the Album “DON’T TOUCH ME”.

In support of the Plaintiff’s claim of ownership, there is before this Court, as Exhibit B to the Motion Exparte a Deed of Assignment between Alhaji Fatayi Olowonyo, the assignee of the one part, and the Musical Copyright Society of Nigeria, of the other part.

By para 3 of the Deed of Assignment, the Assignor assigned to the Assignee-:

“All the under-mentioned rights in musical works which now belong to …or become vested in the Assignor during the continuance of the Assignor’s membership of the society.”

It is the case of the Defendant/Applicant that the Plaintiff did not comply with the provisions and Section 32B of the Copyright Decree, and accordingly, cannot represent any owner of a copyright, so as to protect its interest. In this regard vide para 5 of the Affidavit in Support of this Motion which avers that.

“5 That the Plaintiff is not an approved collecting society in accordance with the provisions of the Copyright Act 1988 and therefore has no legal authority to represent music rights owners or extort payment from users of Music in Nigeria.

Specifically, Section 32B(1), (2) and (3) provide as follows:-

“Collecting 32B(1) A collecting society (in this Section referred to as “a society” may be formed in respect of any one or more rights of copyright owners for the benefit of such owners, and the society may apply to the Council for approval to operate as a collecting society for the purposes of this Act.

2. The Council may approve a society if it is satisfied that.

a. It is incorporated as a company limited by guarantee.b. Its object is 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 a substantial number of owners of copyright in any category of works protected by this Act, and in this paragraph of this subsection “owners of copyright” includes owners of performing rights;

d. It complies with the terms and conditions prescribed by regulations made by the Council under this Section.”

The issue that arises therefore, is whether the Plaintiff/Respondent Company is a “Collecting Society” within the meaning of Section 32B (1) and (2) of the Copyright Act (as inserted by the Copyright (Amendment) Decree 1992 No. 98).

In this regard, it is essential to examine the relevant processes as filed by the Plaintiff and Defendant before this Court in this matter, that is:-

a. EXH. A – Certificate of Incorporation of the Plaintiff/Respondent, showing that the Plaintiff was on 20th day of July 1984 registered as company limited by Guarantee in term of Section 32B(2) (a);

b. EXH. B – Deed of Assignment, supra, between the Plaintiffs (assignee and Alhaji Fatayi Olowonyo). The combined reading of all the provisions of the Deed of Assignment, particularly paras

2 (Assignment of rights in musical works). para 3 (covenant by the Plaintiff/Assign to pay to the Assignee periodically, such sums of money collected by the society in respect of the assignment therein), and para 4, (the warranty given to the Society by Assignor) put it beyond controversy that the Deed of Assignment signed between the plaintiff and the Assignor/Owner of the musical work in which the copyright herein resides:-

i.  Flows from the Assignor/Composer’s membership of the society; and shall continue during the continuance of such society; (para 2).

ii.  The society shall pay to the Assignor periodically, certain sums of money collected by the Plaintiff by virtue of the exercise of the rights assigned to the society in the works of its members and which the society is entitled to receive in accordance with the Rules of the society for the time being in force (para 3).

iii. And the Assignor warranted to execute all assignments and powers of Attorney to enable the Plaintiff/Society exercise its powers relative to the copyright.

It is my view that the reading of the Deed of Assignment supra, in its entirety, leaves me in no doubt that the Plaintiff is “Collecting Society”, within the meaning of Section 32B of the copyright Act (as inserted by the Copyright (Amendment) Decree 1992 (1992 No. 98).

In this regard, I would specifically refer to Section 32B(2)(b), which provides as follows:-

“The Council shall approve a Society if it is satisfied that.

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 a substantial number of owners of copyright in any category of works protected by this Act…….”

Concerning compliance with Section 32B(2) (c), see para 2 of the Plaintiffs Statement of Claim which avers that.

“The Plaintiff is the owner, assignee and exclusive license of the performing reproduction and other right in musical works contained in repertoire within the territory of Nigeria.”

Applying the provisions of Section 32B to the facts of this case, there is sufficient compliance, by virtue of Exhibit A (Certificate of Incorporation) and Exhibit B (Deed of Assignment), with the provisions of Section 32B (2)(a), (b) and (c). Therefore there is a manifest intent on the part of the Plaintiffs to operate as Collecting Society. But then, there are the provisions of Section 32B(2)(b), which provides as follows:-

“The Council may approve of a Society if it is satisfied that:

(d) it complies with the terms and conditions prescribed by regulations may by the Council under this Section.”

There is nothing before this Court to indicate that the Plaintiffs have complied with the terms and conditions set by the Copyright Commission for approval by the Commission a Collecting Society; in terms of Section 32B (2)(b) of the Copyright Act, as amended. I do believe, however, that having regard to the Plaintiff’s compliance with the requirements of Section 32B(2)(a), (b) and (c) of the Act, the intention by the Plaintiff was to form a Collecting Society, in terms of Section 32(B)(1) of the Act.

Having found that the Plaintiff have not shown any compliance with Section 32B(2)(d) of the Act, how does that non-compliance bear upon the Plaintiff’s Locus Standi to sue as the Plaintiff in this suit?

It is trite that Locus Standi or capacity to commence an action exists where a person has a personal interest which has been or is likely to be infringed – vide:-

1. Thomas v. Olufosoye (1981) 3 NWLR (Pt. 13)523 – Sc.

2. Adesanya v. The President (1981) 1 SCNLR 12 – Sc.

And in the case of Qua Vadis Hotel and Restaurant Limited v Commissioner of Lands (19/3) 6SC 71 at 82, the Supreme Court held that “It is fundamental that a person who institutes an action in Court must be competent to do so.”

In the case of Amadi v Essien (1994)7 NWLR (Pt. 354)96 the Court of Appeal, Inter alia, held that:-

“The main test or major determinant of Locus Standi is whether the Plaintiff has sufficient interest in the subject-matter of the suit. If he has, then he is entitled to sue.”

The Court went on, at page 115 –

“The question whether a Plaintiff has sufficient interest in the subject-matter of the suit cannot be determined in vacuo but in the context of the facts and the circumstance of the case…..”

And in the case of Atoyebi v Governor of Oyo State (1994)5 NWLR (Pt. 344) 290, at P.310, the Supreme Court held that:-

“The question or issue of Locus Standi is not a matter of fact but clearly a matter of law.”

In the case of In Re Adetona (1994) NWLR (Pt. 333)481 at pp the Court of Appeal held inter alia as follows:

“Locus Standi can only arise from a right recognizable and conferred on the Plaintiff by law, where there is no such right, the Plaintiff cannot be said to have a standing to commence or institute the action…..”

In this case, the Plaintiff has for all intents and purposes, sued in the capacity of a “Collecting Society” in respect of divers copyrights conferred upon it in the works of one of its members.

I have already found that the Plaintiff has not been approved as a Collecting Society by Copyright Council as required by Section 32B92) (d) of the Copyright Act, as amended.

It is the case of the Plaintiff’s Counsel that the Copyright (Amendment) Decree is not relevant to this suit.

I do not agree; for in the case of Opeola v Opadiran (1994)5 NWLR (Pt. 344)368, the Court of Appeal held that:-

“…..The rule of construction of Acts of Parliament is that they should be construed according to the intent of the Parliament. If the words of the Statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in the natural and ordinary sense…….”

In this case, Section 32B insists that a Collecting Society shall be recognized as such only when it has complied with Subsection 32B(2) (d) There is nothing to show that the Plaintiff has been so approved by the Council. Therefore, the Plaintiff runs the risk of attracting the provisions of section 32B(4), Section 32B(4) provides.

“It shall be unlawful for any group of persons to purport to perform the duties of a Collecting Society without the approval of the Council as required under this Section.”

Again, in the case of In Re Adetona, supra, the court of Appeal held Inter alia :-

“The issue of Locus Standi is not dependant on the merits of a case but is a condition precedent to a determination on the merits.

If a Plaintiff has no Locus Standi, or standing to litigate a matter, it is not necessary to consider whether he has a genuine case on the merits.”

The Court further held:-

“In order to clothe the Court with jurisdiction, the Plaintiff must show that he has the Locus Standi to commence and institute the action. This is because the Locus Standi of the Plaintiff is a pre-condition to the Court assuming Jurisdiction. Where this initial hurdle is not satisfied, the Plaintiff cannot proceed to the next stage of the litigation by way of leading evidence……..”

Based on all the foregoing, I have reached the considered conclusion that the Plaintiff herein, having not complied with the entire provisions of Section 32B(2) particularly s.32B(2) (d), and consequently, not having been approved as a Collecting Society by the Copyright Council in terms of s.32B(1) and Sc.32B(2)(a); (b) and (c) of the Copyright Act, as amended, the Plaintiff lacks the Locus to institute this suit.

In the case of Ogwuru v CO-OP Bank of Eastern Nigeria Limited (1994) 8 NWLR (Pt. 365)685, the Court of Appeal held that:-

“It is the duty of the Court, when asked to give a judgment which is contrary to a statute, to take the point, although the litigants may not like it.

Thus where the illegality of a transaction has become apparent, the Trial Judge must act to enforce and protect the law of the land.”

The Court went on:-

“The law is that a Party should not be allowed to benefit from his own wrong-doing as the Court should not allow itself to be used as an instrument of fraud……..”

Accordingly –

The Plaintiff lacks the Locus Standi to institute and maintain this action; and the Court, the jurisdiction to hear it, and

The Defendant/Applicant’s Motion herein succeeds and the suit herein struck out of this Court’s Cause List (vide Oloriode v Oyebi (1994)1 SCNLR 390).

2. Consequently, this Court’s Order Exparte made on the 15th April 1996 is hereby dissolved, and all the goods removed from the Defendant’s premises in execution of this Court’s Order Exparte dated 10th April 1996, per the Inventory filed in this Court on 11th April is hereby ordered to be released forthwith to the Defendants. That is the finding of this Court in this Suit.

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