«back to Cases and Principles

NLIPW Cases and Principles

Nigerian Copyright Commission v. Dominion Kalu

   Federal High Court

Judgement delivered on Wednesday, March 28, 2012
Citation: 55 NIPJD [FHC. 2012] ABJ/CR/12
Suit No. ABJ/CR/12/2012    Jurisdiction: Nigeria

Judgement delivered by Honourable Justice Adamu Bello

Appearances: A.T. Kohol Esq. DPP with S. Dimowo Esq. and J. I. Ogbonna Esq for the Prosecution
Accused representing himself

Copyright Infringement, Sale and Possession of Local and Foreign Musical and Cinematograph Films, Illegal Sale of Sound Recordings: The Accused was charged for possession and sale of infringing copies of cinematograph films and musical works.

I. FACTS AND SUMMARY

The accused at the time of her arrest was in possession of 502 infringing copies of local and foreign musical and cinematograph films. The accused pleaded guilty to the charge and on March 28, 2012, Honourable Justice Adamu Bello of the Federal High Court in Abuja convicted the accused and sentenced her to six months imprisonment, with an option of N20,000 fine.

“Since you pled guilty to the first count in the charge after it was read over and explained to you in open court and I am quite satisfied that you did so after you understood the charge and the effect of your plea and in view of the additional evidence tendered and received by the court supporting the charge,  I now find you guilty of the offence and convict you accordingly.”…Justice Adamu Bello

In sentencing the accused, the court took into consideration the fact the accused was a first time offender and other mitigating factors including the fact that she was a widow with children, pled for forgiveness and promised not to commit the crime for which she was charged and convicted.

“I have considered the plea made by the convict for leniency and the fact that she is a first time offender.  I have also considered her situation of being a widow with some children to look after and I am also tempted to say go home and sin no more but for the law which stipulates that a sentence must be imposed….I am persuaded by the proposition of the law that one of the attributes of sentencing is to reform the convict and not to destroy him.  I am therefore prepared to give the convict a liberal sentence based especially on her promise not to engage in the crime for which she was found guilty and convicted. I sentence her to 6 months imprisonment with the option of fine of N20,000.”…Justice Adamu Bello

The court also ordered that the exhibits, 502 copies of local and foreign musical and cinematograph films, be handed over to the Nigerian Copyright Commission for destruction in accordance with Section 20(5) of the Copyright Act.

II. TRANSCRIPT OF COURT

Accused Present in court.

A. T. Kohol: The matter is arraignment. But we filed an amended charge dated 27/3/2012. We wish to substitute the initial charge with the amended charge. We have served it on the Accused Person. We apply that the amended charge be read to the Accused for her plea.

Court: Would the Accused need to be represented by a Counsel?

Accused: I do not have a Counsel. I do not intend to have one – I am ready to take my plea.

Court: The initial charge brought against the Accused Person which was filed on 31/1/2012 is struck out while the amended charge should now be read to the Accused Person for the plea.

Court: Charge read over and explained to the Accused Person in open Court.

Accused: I understand the charge read over and explained to me.

Court: Do you plead guilty or not guilty?

Accused: I plead guilty to Court 1.

Accused: I plead not guilty to Court 2.

A.T. Kohol: In view of the guilty plea of the Accused Person to Count 1, I wish to withdraw Count 2 in the charge.

Accused: I do not oppose the withdrawal of Count 2 of the charge by the Prosecutor.

Court: The application to withdraw Count 2 in the charge by the Prosecutor is hereby granted. Accordingly Count 2 in the charge is struck out and the Accused discharged accordingly.

Prosecution: Subject to the Convenience of the Court we are ready to review the facts in Count 1. The facts of this case are stipulated in Count 1 of the charge. We seek to tender in evidence from the bar, the following exhibits:

  1.  The cautionary statement of the Accused Person.
  2. The list of inventory of the infringed CDs and DVDs found in her custody and the CDs and DVDs totalling five hundred copies.

A.T. Kohol: May I apply that while the copies are being counted, our matter can be stood down to allow other cases to be mentioned.

Court: I appreciate the concern of the Learned Counsel for the Prosecutor on the need to hear other cases but we deal with cases one at a time. So since proceedings are ongoing on in this matter, it is not neat to stand down the case while counting is going on, moreso, when our stand down the case while counting is going on, moreso, when our attention will be distracted by counting.

Court: The cautionary statement of the Accused and the list of inventory items recovered from her are received in evidence and marked as exhibits 1 and 2, while the whole of the 502 CDs and DVDs are to be marked as exhibit 3.

Prosecution: Based on the guilty plea of the Accused and the additional evidence produced before the Court, we urge the Court to convict the Accused Person.

Court: Since you pled guilty to the first count in the charge after it was read over and explained to you in open court and I am quite satisfied that you did so after you understood the charge and the effect of your plea and in view of the additional evidence tendered and received by the court supporting the charge,  I now find you guilty of the offence and convict you accordingly.

Court: Do you understand the conviction?

Convict: I understand the conviction.

Court: Do you have any plead for mitigation of sentence?

Convict: I am a widow. I started this illegal business when I lost my husband. I do not have any other thing doing except selling the CD’s to cater for my children. And since this happened I have not been able to cope with school fees and the house rent. I have two kids and I am the only one to take care of them. I promise I will not engage in the selling of the CDs again. I plead for forgiveness.

Court: Any record:

Prosecution: None to my knowledge. I wish to draw attention of the Court to section 20(2)(c) of the Copyright Act Laws of the Federal Republic of Nigeria. The punishment provided is N100 per copy, the court has discretion to reduce the amount or impose a sentence of a fine.

III. SENTENCE

The Federal High Court sitting in Abuja sentenced the accused to 6 months imprisonment with the option of fine of N20,000 for the sale of 502 infringing copies of local and foreign musical and cinematograph films in breach of Section 20(2)(a) and (c) of the Copyright Act.

“I have considered the plea made by the convict for leniency and the fact that she is a first time offender.  I have also considered her situation of being a widow with some children to look after and I am also tempted to say go home and sin no more but for the law which stipulates that a sentence must be imposed. From the tone of the Learned Prosecutor, it is obvious that he too, is indirectly making a plea on behalf of the Convict.

I am persuaded by the proposition of the law that one of the attributes of sentencing is to reform the convict and not to destroy him.  I am therefore prepared to give the convict a liberal sentence based especially on her promise not to engage in the crime for which she was found guilty and convicted. I sentence her to 6 months imprisonment with the option of fine of N20,000″

Delivering the judgement on March 28, 2012, Justice A. Bello ordered that the infringing copies be handed over to the Nigerian Copyright Commission for destruction in accordance with Section 20(5) of the Copyright Act.

“Prosecution: I apply under section 20(5) of the Copyright Act for the release of the copies of the infringing materials exhibit 3 for destruction by the Complainant.

Court: The 502 copies of the infringing materials recovered from the Convict are confiscated and forfeited to the Complainant. The recovered items marked exhibit 3 are to be released to the Complainant for destruction accordingly.”

NLIPW Logo

Print Friendly, PDF & Email
FILE A TRADEMARK