Musical Copyright Society Nigeria (Ltd/Gte) v. Nigeria Hotels
Federal High Court
Ruling delivered on Friday, February 8, 1991
Citation: 34 NIPJD [FHC. 1991] 43/1989
Suit No. FHC/L/43/89 Jurisdiction: Nigeria
Ruling delivered by Honourable Justice G.A.A.T. Jinadu
MUSICAL COPYRIGHT SOCIETY NIGERIA LIMITED BY GUARANTEE
Ruling: On whether the approval of the Minister of Finance and registration with the National Office of Industrial Property is necessary for the MCSN to collect royalties on the use of its music repertoire.
It was in the course of cross-examination of the 1st plaintiff witness that the learned counsel for the defendant Mr. Umunna asked the witness a question which I disallowed and directed the witness not to answer. The learned Counsel then demanded to be recorded and a ruling given on the issue. The learned counsel asked the witness to tell the court whether the plaintiff obtained necessary approved status or any other consent of the Minister of Finance authorising the plaintiff to remit money from Nigeria to anybody outside Nigeria. He also wanted the witness to tell the court if the plaintiff obtained a permit of the National Office of Industrial Property which authorizes it to charge money on foreign licenses and royalties. The learned counsel submitted that the two questions are relevant to the issues before the court and as such he could ask the witness the questions. That the questions are asked on a defence based on ground of law contained in paragraph 7 of the statement of defence. He argued that the ruling given on a demurrer application on the same issue does not estop the Defence counsel from raising issues of fact in cross-examination that was not determined in the demurrer application.
Mr. Okubule, the learned counsel for the plaintiff replied that the questions proposed to be put to the witness are irrelevant to the main issues before the court which are whether there is a valid agreement between the plaintiff and the defendant and whether the contract is unenforceable. He submitted that since the questions being posed are questions of law they are better reserved for final submission. He argued that the non-compliance with foreign exchange regulations are assertions made in the state of Defence and so the burden of proof is on the defendant to prove the non-compliance.
I agree with the learned counsel for the defendant that my learned brother’s ruling on the demurrer application does not estop the defendant from proceeding to ask the questions proposed to be put to the plaintiff’s witness if they are considered relevant since my learned brother merely held in the said ruling that the question of unenforceability of the agreement was premature at that stage. However, it is my view that the questions proposed to be put to the witness are irrelevant to these proceedings. First, the defendant in paragraph 6 of its statement of Defence admitted paragraphs 4 and 5 of the statement of claim which paragraphs state:-
4. The Defendant is a Limited Liability Company incorporated under the Laws of Nigeria and carried on the business of hotel management, catering, lodging and entertainment throughout the Federation of Nigeria as result of which they become user of copyright musical works of the plaintiff and therefore liable to payment of royalties thereon.
The Defendant Company has at all material times to the agreement under its management and control of the following hotels, to wit; (1) Ikoyi Hotel, Lagos; (2) Bristol Hotel, 8 Martins Street, Lagos (3) Central Hotel, Bompai Road, Kano; and (4) Hill Station Hotel, Jos”.
From the quoted paragraphs of the statement of claim the defendant has admitted that as a result of the nature of its business it has become user of copyright musical works of the plaintiff and therefore liable to payment of royalties thereon. If the defendant admitted it was liable to payment of royalties to the plaintiff the issue of what the plaintiff does with the royalties paid to it is irrelevant to the defendant because the plaintiff is not an accounting party to the defendant. The royalties are to be collected here in Nigeria therefore if in dealing with the amounts collected after they have been collected the plaintiff breaches the Exchange Control Act, 1962 or any other laws including National Office of Industrial Property Decree as canvassed by the defendant, the plaintiff will be subjected to the sanctions provided by those laws.
The status of an agreement not registered under National Office of Industrial Property Decree has been decided by the Court of Appeal in the case Beecham Group Ltd. v. Essdee Food Products Nig. Ltd. CA/L/12/84 that failure to register a license agreement or contract does not nullify the agreement but has effect if at all only in relation to foreign exchange.
Section 6 of the Evidence Act provides that evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are of every fact in issue if such other facts as are hereinafter declared to be relevant, and of no others. It is my view that the questions the learned counsel for the defendant proposes to ask the witness are non material to the consideration of the issues before the court. I agree with the learned counsel for the plaintiff that the provisions of the National Office of Industrial Property Decree No. 70 of 1979 is not applicable to copyright the subject-matter of this case – see section 4 thereof.
I therefore hold that the questions proposed to be asked are irrelevant and should not be asked and are therefore disallowed.
Appearances: Mr. A. O. Okubule for the Plaintiff
Mr. Achike Umunna for the Defendant