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Musical Copyright Society Nigeria v. D.P. Lekki Ltd.

Federal High Court

Ruling delivered on Friday, July 5, 1991
Citation: 34 NIPJD [FHC. 1991] 168/1990
Suit No. FHC/L/168/90      Jurisdiction: Nigeria

Ruling delivered by Honourable Justice G.A.A.T. Jinadu

Appearances: S.A. Agidee for the Defendant/ Applicant.
A. O. Okubule for the Plaintiff/Respondent

BETWEEN

MUSICAL COPYRIGHT SOCIETY NIGERIA LTD………………….Plaintiff

and

D. P. LEKKI LIMITED…………………………………………………….Defendant

RULING

The particulars of claim in this suit read:-

1. A perpetual injunction restraining the Defendants whether by themselves or by their servants, agent and/or privies or otherwise howsoever from the continued infringement of the musical works in the Plaintiff’s repertoire.

2. The sum of N250,000.00 being the amount of damages arising from the infringement of the Plaintiff’s copyright music by the Defendants as organizer and promoter of several musical concerts, shows, jamborees and other musical performances throughout the Federation of Nigeria.

The plaintiff has made repeated warnings and demands on the Defendants to obtain its license and pay necessary copyright royalties but the Defendants have refused, failed and/ or neglected to obtain such license in spite of repeated demands.

And the plaintiff claim the said relief with costs.”

Pleadings were ordered, filed and exchanged between the parties. The defendant then brought this motion on notice seeking the following orders:-

1. Dismissing the Plaintiff/Respondent case on the ground that leave of court to sue as exclusive licensees (sic) was not obtained and

2. Dismissing the plaintiff’s case on the grounds that the plaintiff lacks the locus standi to institute or maintain the action.

3. For such further order or orders the Honourable Court may deem fit to make in the circumstances.”

There is no affidavit filed in support. There is also no counter-affidavit filed.

The learned counsel for the defendant after referring to the rules and sections of the law under which the application was brought stated that the application was also brought under the inherent jurisdiction of this court. He referred also to the prayers sought. He relied on section 15 (2) of the Copyright Decree, 1988 and contended that the plaintiff should not have instituted this action without leave of court because the copyright authors and owners of the works which the plaintiff claims are not joined as plaintiffs or defendants to this action. He submitted that the section gives effect to order 4 rule 2 of the Federal High Court (Civil Procedure) Rules which, he said, acknowledged the joinder of those persons who share in the rights claimed by the plaintiff. He referred specifically to paragraph 3, 4, 12 and 22 of the statement of claim which acknowledged the existence of adverse claimants in respect of whom the plaintiff does not maintain a representative action. He submitted further that these persons are the real authors, owners, exclusive licensors and assignors through who the plaintiff claims. He therefore prays the court to dismiss the plaintiff’s case on this ground or give such orders as it may deem fit.

On the second ground the learned counsel for the defendant submitted that the plaintiff must have sufficient legal interest in the subject-matter of this suit to be able maintain the action. He said the rights claimed by the plaintiff is created by the Copyright Decree, 1988 therefore the plaintiff must show that this decree vest it with legal capacity or right created by the decree. He said what the plaintiff claims are that the music works to which it is an exclusive licensor have been infringed by the defendant. He then submitted that by the provision of section 2 (1) of the decree the plaintiff must first show that it is a qualified person. He submitted also that there is no averment in the statement of claim that showed the time the works in question were made. That there is nothing said of the domicile of the authors or when the works were made. He said these material facts which are absent from the statement of claim cannot be presumed or taken for granted because they must be established in the statement of claim.

He referred to Bolaji v. Bamgbose (1986) 4 NWLR (Pt. 37) 632 at 634 where it was held that when locus is challenged only the statement of claim must be looked at. He said the court cannot presume those facts under section 73 of the Evidence Act. He also relied on section 3 of the decree by which he said the plaintiff would have been availed of the provisions of section 2 of the decree if the works alleged infringed by the defendant were first published being musical works in Nigeria. Learned counsel submitted that from the averment in the Statement of claim the plaintiff is neither eligible for copyright nor are the works allegedly infringed conferred with copyright, therefore the plaintiff lacks reasonable cause of action – cited in supportBolaji case, supra. He urged the court to dismiss the plaintiff’s action on this ground too.

Mr. Okubule, the learned counsel for the plaintiff, in his reply submitted that apart from section 15 (2) of the Copyright Decree 1988 the other sections relied upon by the learned counsel for the defendant are not in support of the application. He submitted that this application being a preliminary objection ought to have been brought pursuant to the provisions of order 27 of the Federal High Court (Civil Procedure) Rules, 1976 because the effect of the success of the application will be a dismissal of the suit without going to trial. He submitted that the application has failed to comply with the procedural requirements of the said order 27 in that the applicant has filed its statement of Defence therefore it has taken further step in the suit subsequent to the receipt of the statement of claim. He referred to Karibi-Whyte’s Federal High Court Law & Practiceand contended that this application is brought rather too late and should be dismissed. The learned counsel submitted further that section 15 (2) of the decree does not in any way affect the plaintiff’s right to sue as an exclusive licensee because section 15 (1) empowers three different persons with the right to bring an action for copyright infringement: These, he said, are the owner, the assignee and the exclusive licensee.

He submitted that the plaintiff in paragraph 1, 3, and 4 of its statement of claim has clearly indicated that it has sued both as an assignee and as an exclusive licensee. He argued that since the defendant has not questioned the plaintiff’s right to sue as an assignee the defendant’s application will, if successful, only affect the plaintiff’s right as an exclusive licensee and not as an assignee. Learned counsel argued that section 15 (2) of the decree is capable of three different situations. The first being that as assignee or an exclusive licensee need not apply for leave of court where both of them have concurrent rights of action once the other is joined in the action either as a plaintiff or as a defendant. Secondly, where the action for an infringement brought by the owner or an exclusive license is shown to be in respect of an infringement over which they both have concurrent rights of action the plaintiff who does not want to come under the first option may not commence the action without the leave of court. In this situation learned counsel contended that the plaintiff has a discretion in the matter. Thirdly, where the copyright owner or the exclusive licensee brings an action for infringement of copyright and it was able to show that the action relates to an infringement in respect of which it did not have concurrent rights of action then in such cases the plaintiff does not have to join the other as either plaintiff or defendant and no leave of court needed to be obtained. Learned counsel submitted that in the instant case the plaintiff did not need to obtain the leave of court because it does not have a concurrent right of action with the copyright owner. He once again referred to paragraphs 1 and 3 of the statement of claim where it was averred that the right of action has been transferred or assigned to it within the territory of Nigeria which makes the plaintiff an exclusive licensee therefore the plaintiff is exercising its right as an exclusive license and not concurrently with the Performing Right Society of London which has parted with its rights.

In his reply on locus standi the learned counsel yet again referred to paragraph 1,3, & 4 of the statement of claim wherein the capacity in which it instituted this action was stated. He then referred to the Copyright (Reciprocal & Extension) Order, 1972, Order 1 (a) (b) which he submitted must be taken into consideration when construing Section 2 of the decree since it has in effect enlarged the provisions of the said Section 2 which now extends to individuals who are citizens of or are domiciled in any of the countries specified in the Schedule to the Order and companies that are established by or under the laws of the said countries. He submitted that United Kingdom as well as Nigeria are signatories to the Copyright Convention of 1952. He submitted further that works of British citizens including the PRS of London are eligible to Copyright protection within the Nigerian territory. He also submitted that the plaintiff having taken over the rights of authors, composers and publishers of music who have assigned their rights to the PRS of London has the exclusive right to institute this action against the defendant. He said the plaintiff has clearly shown that it is an interested party to this action as it stands to be affected one way or another by the outcome of this suit. He cited in this connection my learned brother Tofomowo, J’s ruling in Suit No. FHC/L/43/89 delivered on 26/3/09 at page 4. He urged the court to refuse this application as misconceived and to award substantial costs.

In his reply on point of law the learned counsel for the defendant submitted that the issue of locus standi can be raised at any stage of the proceedings and even by the court suo motu where the statement of claim does not show sufficient interest of the plaintiff to commence the action. Learned counsel said the applicant did not intend to bring the application under Order 27 of the Federal High Court (Civil Procedure) Rules because the conditions for bringing an application under that order are that the facts in the statement of claim must be taken as having been admitted by the defendant as if they were true. He submitted that the defendant has not brought a demurrer application. Learned counsel said the submission that it is the plaintiff that has the discretion to obtain or not to obtain leave is misconceived since if leave is not imperative there would have been no need to include the provision in the decree. He argued that the Copyright (Reciprocal Extension) Order cannot be relied upon because the Order refers to the Copyright Decree, 1970 which has been repealed by the Copyright Decree, 1988.

First, there is no substance in the submission of the learned counsel for the plaintiff that this application should have been brought by way of a demurrer under Order 27 of the Federal High Court (Civil Procedure) Rules. I am of the view that the issue of locus standi being related to the jurisdiction of the court can be brought at any stage of the proceedings even under the court’s inherent jurisdiction, See Ogunsanya & Anor. v. Dada & Ors. (1990) 6 NWLR (Pt. 156) 347. Although I agree that Order 4 rule 2 under which the application was brought is not germane although it does not matter under what ever rule that the application was properly before the court – See Bolaji v. Bamgbose, supra, where it was held that the locus standi being a fundamental issue it does not matter under which rule the application challenging the locus standi is brought and that even the court may suo motu raise the issue. The defendant’s counsel’s contention is that the plaintiff has no locus standi because the statement of claim did not show that the plaintiff is a qualified person under Section 2 (1) of the Copyright Decree, 1988 since there are no averments dealing with the time when the works in question were made or the domicile of the authors of the works for which the plaintiff claimed to be exclusive licensee. I do not agree with this contention. I agree with the plaintiff’s counsel that the plaintiff has in paragraphs 1, 3 and 4 of the statement of claim showed the legal capacity which it sued both as an exclusive licensee for the performing Rights Society of London and the assignee of various Nigerian authors, composers and producers. This is what paragraphs 1, 3 and 4 of the statement of claim say:-

1. The plaintiff is a limited liability Company Incorporated under the laws of Nigeria and acts as exclusive licensee for the Performing Right Society Limited of United Kingdom (hereinafter called the PRS) for the purpose and business of licensing and authorising the public performance of copyright musical works, collection and distribution of royalties accruing thereto in Nigeria and abroad and also acts as assignee of the performing rights in the musical works belonging to Nigerian composers and authors of musical works for the aforesaid purposes.”

2. By an exclusive License Agreement executed and dated in Lagos on 27th March, 1986 and 14th April, 1986 I London the PRS transferred the rights of its composers, authors and publishers of music, assets and liabilities in Nigeria to the Plaintiff Company.”

3. By Agreements severally and variously executed and dated in Nigeria between 10th December 1986 to date, various Nigerian music authors, composers and arrangers have assigned the performing rights, among other right, in their musical works to the plaintiff company.”

I agree with the submission of the plaintiff‘s counsel that in considering Section 2 of the Decree of 1988 cognizance must be taken of provisions of the Copyright (Reciprocal Extension) Order 1972 which is still a subsisting order by virtue of the provisions of Section 40 (3) of the Copyright Decree, 1988. In paragraph 1 of the statement of claim the plaintiff has categorically stated that it is an exclusive licensee of the Performing Rights Society of London in Nigeria. It did not say that the Performing Rights Society enjoys a concurrent right of action with it. Therefore the plaintiff has right of action for infringement under section 15 (1) of the Decree and that right is not affected by the provisions of Section 15 (2) of the said Decree. And being as assignee of the rights of the Nigerian authors, composers and producers it also has the right of action to sue as an assignee under, Section 15 (1).

By paragraphs 1, 3 and 4 of the statement of claim the plaintiff has complied with the provision 2 of Section 2 of the Decree as extended by the provisions of Order 1 (1) (b) and (2) of the Copyright (Reciprocal Extension) Order, 1972.

I therefore hold that the plaintiff has locus standi to commence this action and also that no leave of court was needed to be obtained before the institution of this action.

Application is therefore hereby dismissed with N100.00 costs to the plaintiff.

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