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Ubi Bassey Eno v. Nigerian Copyright Commission

Court of Appeal

Judgement delivered on Thursday, April 23, 2009
Citation: 52 NIPJD [CA. 2009] 46/2007
Charge No. CA/C/46/2007       Jurisdiction: Nigeria

BEFORE THEIR LORDSHIPS

KUMAI SA YANG AKAAHS, J.C.A
JEAN  OMOKRI, J.C.A. (Delivering the Lead Judgement)
THERESA N. ORJI-ABADUA, J.C.A.

Appearances: Utum Eteng, (with him), I. William for the Appellant.
O. Ezeilo, (with him), O. Odokwo, for the Respondent

Copyright Infringement, Illegal Rebroadcasting and Transmission, Possession of Equipment for Illegal Rebroadcasting and Transmission, Section 18 (1) – (3) Copyright Act 1990 [now Section 20 (1) – (3)] — The court considered whether the prosecution had proved its case beyond reasonable doubt; whether the learned trial Judge fully considered the defence of the Appellant and whether in sentencing the Appellant, the learned trial Judge exercised his discretion judicially.

I. FACTS

This is an appeal against the judgment of Ajakaiye, J., at the Federal High Court, Calabar Judicial Division (Suit No. FHC/CA/31C/2003), delivered  on the 12/12/06.

The  Appellant,  who  was  the 1st accused  at  the court  below,  with  two others,  namely,  Mr.  Ota  Bassey  Eno  (2nd  accused) and  Digital  Entertainment Television (3rd accused), were arraigned before the Federal High Court, Calabar, on the 4 count charge as follows:

Count One:

That you (1) Ubi Bassey Eno “M”, (2) Ota Bassey  Eno “M” and  (3)  Digital  Communication Network (Nig.) Ltd. all of No. 28, Akim Close, State Housing Estate, Calabar, Cross River State on or about the 8th day of September, 2003 within the Calabar Judicial Division of the Federal High Court did have in your possession two (2) Nos. Multichoice Satellite decoders and two (2) Nos. Multichoice smart cards being equipment/contrivances for the purposes of illegally rebroadcasting/transmission of  the whole or substantial parts of Multichoice Programs (channels) in which Copyright subsist in favour of Multichoice Nigeria without the consent or authorization of the copyright owners and thereby committed an offence contrary to and punishable under section18(1)(c) of the Copyright  Act (Cap 68)  Laws of the  Federation  of Nigeria 1990 (as amended).

Count Two:

That you (1) Ubi Bassey  Eno “M”, (2) Ota Bassey Eno “M” and (3) Digital Communication (Nig.) Ltd., all of No. 28, Akim Close, Stale Housing  Estate, Calabar, Cross River State on or about  the  8th day of September, 2003  within the Calabar Judicial  Division  of the Federal  High Court by way of rebroadcasting and/or transmission through Digital Communication Network  (Nig.)  Ltd. did sell or let or hire or for the purposes of trade or business, exposed or offered for sale or hire the whole or substantial parts of Multichoice Nigeria Programs (Channels) in which Copyright in Broadcasts  subsist  in favour of Multi-choice Nigeria, without the consent or authorization of the Copyright Owners and thereby committed an offence contrary to and punishable under  section  18(2)(a) of the Copyright  Act  (Cap 68)  Laws of the Federation of Nigeria 1990 (as amended).

Count Three:

That you (1) Ubi Bassey Eno “M”, (2) Ota  Bassey Eno “M” and (3) Digital Communications (Nig.) Ltd. all of  No. 2B, Akim  Close, State  Housing  Estate, Calabar, Cross River State on or about the 8th day of September, 2003 within the Calabar Judicial  Division of the Federal  High Court did have  in your possession other than for your private or domestic use two (2) Nos. Multichoice Satellite  decoders and  two (2)  Nos. Multichoice Smart card properties of Multichoice Nigeria and thereby committed an offence contrary to and punishable under section 18(2)(c) of the Copyright Act (Cap 68) Laws of the  Federation of Nigeria 1990 (as amended).

Count Four:

That you Ubi Bassey Eno “M”,  Ota  Bassey  Eno “M” and Digital Communications (Nig,)  Ltd,  all  of  No, 2B, Akim Close, State Housing Estate, Calabar, Cross  River State on or about  the  8th  day  of  September, 2003 within the Calabar Judicial Division of the Federal High Court without the consent  of Multichoice Africa and Multichoice Nigeria, did distribute in public for commercial purposes by  way of re-broadcasting and for transmission Multichoice Programs (channels) through Digital Entertainment Television (DET) to wit: Movie Magic, Channel O,  M-Net, Super-Sports and Discovery Channels, etc, in which copyright in broadcast subsists by way of rental, lease, hire, loan or similar arrangement and thereby committed an offence contrary to and punishable under section 18(3) of the Copyright Act (Cap 68) Laws of the Federation of Nigeria 1990 (as amended).”

When the charge was read to the accused persons, including the Appellant, they all pleaded not guilty. The prosecution called two witnesses to testify in support of the charge while the Appellant and the 2nd accused person  testified in the defence. The 3rd accused being a corporate body did not testify.

At the conclusion of the trial, the trial Judge convicted the Appellant and 3rd accused for the offence under counts 1, 2 and 4. The 2nd accused was discharged and acquitted. Count 3 was struck out.

Unhappy with his conviction and sentence, the Appellant appealed to this court on four grounds subscribed in his Notice of Appeal filed on 9/1/07. From the four grounds of appeal filed, the Appellant formulated three issues for determination as follows:

“1.    Whether the prosecution proved its case beyond reasonable doubt.

2.    Whether the learned trial Judge fully considered the defence of the Appellant.

3.    Whether in sentencing the Appellant, the learned trial Judge exercised his discretion judicially”. 

The Respondent adopted the three (3) issues formulated by the Appellant without any modification or amendment.

In arguing Issue No.1, learned counsel for the Appellant, Mr. Utum Eteng, in the Appellant’s brief, made copious references to the evidence of PW1, at pages 14 -17 and PW2 at pages 20 and 24 of the record and submitted that it is certain that the accused persons legally purchased the Multichoice Smart Card, therefore, it cannot be said that their possession of the equipment was unlawful. He also pointed out that the prosecution must prove that the purpose for which the accused persons were in possession is to illegally broadcast or transmit their programmes without the consent and authorization of Multichoice.  Moreover, counsel submitted that Multichoice has no exclusive copyright.

Mr. Eteng contended that the Respondent has not proved counts 2 and 4 beyond reasonable doubt because the trial Judge relied on Exhibits A, B, B1, C, D, E and F, which in his view are not conclusive proofs of the allegations in counts 2 and 4. He argued that the said exhibits are insufficient proof of the counts as it  has not been shown that the list of subscribers, subscribers installation forms and copies of the hand bills were not required by the accused persons for their use as a registered Cable Television Station because the exhibits are required by the accused in the ordinary cause of  business in providing services to their subscribers as a Cable Television Station.

Counsel submitted that there is no finding that the learned trial Judge appraised Exhibits A-F, vis a vis Exhibit N, to know whether they were not for the purpose of selling or letting the services of the company as contained in Exhibit N.  He also alluded to the fact that counts 2 and 4 are the same and they are not distinct offences. He referred to Onokoya  v. F. F. N. (2002) 11 NWLR (PI. 779) and submitted that the appellant was convicted for the same offence duplicated in two separate counts thereby occasioning miscarriage of justice. Lastly, on this issue, learned counsel submitted that the learned trial Judge ought to have cautioned himself before relying on the evidence of DW2 and that his evidence should  have  been  taken  with  a  pinch  of  salt  because  he  was  ready  to incriminate the Appellant to ensure he was seen in a better light.

In respect of Issue No. 2, Mr. U. Eteng submitted that the trial Judge failed to fully consider the defence of the Appellant.  He argued that it was part of the case of the Appellant that there was an on going negotiation between the 3rd accused and the Multichoice Company to enable the latter acquire the right or licence to broadcast the Multichoice programmes and that was what the 3rd accused was doing was just test-transmission before finally consummating the relationship. He contended that the trial Judge ought to have appraised the Appellant’s defence of test transmission in order to know if it was done in the prosecution of an unlawful purpose.  Relying on Ogidi  vs.  State (2005) 1 NCR 163 at 165 and submitted that it is a correct and immutable principle of our criminal law that the trial court must consider the totality of the evidence before it, both aspects which are favourable and those not favourable before coming to a valid  conclusion  whether  or  not  the  case  against  the Appellant  was established.

On Issue No. 3, learned counsel submitted that the learned trial Judge did not advert his mind to the allocutus before passing the sentences  on the appellant.  Relying on Oduba v. Houtmangracht (1997) 7 NWLR (pt. 803) 185.  Mr. Eteng concluded that the trial Judge failed to exercise his discretion judiciously and judicially. If he had done so, he would not have sentenced the Appellant without an option of a fine. He urged the court to allow the appeal, and set aside the sentence.

In his response to Issue No.1,  learned counsel for the Respondent, Mr. Obi Ezeilo, submitted that from the evidence of PW1 at pages 13, 14, 16 and 17 and the evidence of PW2 at pages 19 and 24 of the record, the prosecution effectively proved the case against the appellant and the 3rd accused beyond reasonable doubt. He pointed out that the two Channels being transmitted by the Appellant were properties of the complainant, Multichoice and that the smart card which the Appellant  bought from the Multichoice was used to make an illegal copy of Multichoice property by way of rebroadcast.  It is also in evidence that the rebroadcast done by the Appellant was offered for sale and indeed sold to subscribers of the appellant’s Channels without the consent or authorization of the Multichoice Company.   Further, it is in evidence that the Appellant had possession of the illegal signals which it was transmitting from Multichoice and that it distributed same which was why the signals could be monitored through a television antenna and recorded by PWs 1 and 2.  Counsel contended that it is not in doubt that the decoder and smart or mastercard the appellant bought from Multichoice were bought for the purpose of and in fact used for illegal rebroadcasting and each rebroadcast is an infringing copy within the meaning of section 7(1) of the then Copyright Act (presently, section 8 of the Copyright Act, Cap 28, LFN 2004).

On the question of PW1 contradicting himself at page 17 of the record, where he said that he saw the proof of the Appellant disconnecting the decoder from the broadcasting equipment and not connecting as he said in his earlier testimony, counsel submitted that it was an innocent mistake and moreover, the fact was in contention. Counsel then pointed out that the evidence of PWs 1 and 2 already established that the Appellant used the smart card and decoder to rebroadcast Multichoice channels and also there is evidence that with the use of IRDETO inscription technology, Multichoice traced the smart card that the Appellant used to rebroadcast. Counsel referred to the evidence of PW1, where he testified that the smart card number used by the appellant to rebroadcast Multichoice signals was No. 00061245189  and  that  the Code number for the smart card was BDLlKNPLSTU and what is more.  PW2 testified that the recording of the rebroadcast of Multichoice signal, was recorded in Exhibit J and it showed that the appellant was rebroadcasting the programmes of Multichoice. The appellant in his testimony as DW1, at pages 31 and 32  of the record, admitted the fact.

On Appellant’s submission that Multichoice does not have exclusive right over the channels used in rebroadcasting, counsel submitted that Appellant never claimed that he has the right to broadcast the Multichoice programmes and he did not say who else has the right.  PW1 testified that Mullichoice has the exclusive right and that for anybody to air their channels in Nigeria, licence must be obtained from Multichoice.  Counsel also pointed out that the Appellant admitted approaching Multichoice in order to secure a licence. Relying on Hassan v. State (2001) 6 NWLR (Pt. 709) 286 at 307 and Ezediufu v. State (2001) 17 NWLR (Pt. 741) 82 at 113, counsel submitted that the prosecution proved its case at the trial court beyond reasonable doubt.

On Issue No. 2, learned counsel referred to page 72 of the record and submitted  that  the  learned  trial  Judge  fully considered the defence of the Appellant. Relying on Dagaya v. State (2004) 17 NWLR (PI. 963) 529 and Ademira v. Ashabi  &  14 Ors.  (2004)  2  NWLR  (Pt.  857)  375, counsel submitted that an appellate court will not interfere with the finding of a trial court on the credibility of a witness.

On Issue No. 3, Mr. Ezeilo contended that the trial Judge exercised his discretion judicially because under section 18 of the Copyright Act, under which the Appellant was charged, prescribes a fine or term of imprisonment of both fine and imprisonment. The maximum sentence provided for count 1 of the charge is 5 years but the learned trial Judge gave a lesser sentence. The trial Judge has the discretion to grant an option of fine or not, whether the accused was a first offender or not. Counsel urged the court to dismiss the appeal and affirm the judgement of the trial Judge in sentencing the Appellant.

I have adopted the three issues formulated by the Appellant in his brief of argument in this appeal.  On Issue No.1,  having carefully perused the record of appeal, I agree with the learned counsel for the Respondent, Mr. Obi Ezeilo, that the prosecution sufficiently and effectively proved its case beyond reasonable doubt through the evidence adduced by PWs 1 and 2.

In the instant case on appeal, the Appellant was convicted in Counts 1, 2 and 4 of the Charge.  By the provisions of section 138(1) of the Evidence Act, 1990, the  onus  of  proof  is  on  the  prosecution  to  prove  its  case  beyond  reasonable doubt.   See Igabele v. State (2006) 6 NWlR  (pt. 975): Adamu v. State (1991) 4 NWlR  (PI. 187) 530; Ogidi v. State (2005) 5 NWlR  (PI. 918) 286 and Chiokwe v. State (2005) 5 NWLR (Pt. 918) 424.  In furtherance of the above, the prosecution called two witnesses to prove the counts in the charge,  namely,  PW1,  Federick  Coeuraad,  who  is  a  staff  of  Multichoice Company and PW2, Elijah Johnny Akpan, a staff of the Respondent, Nigeria Copyright Commission.  PW1 testified at pages 13 –  14 and cross-examined at pages 16 and 17 of the record.

PW1, Frederick Coeuraad Jonker, testified at pages 13 and  14 of the record as follows:

“Frederick Coeuraad Jonker, residing at 24 Gail Street, Roodepoo in South Africa. Employee of Multichoice Africa sworn on Holy Bible states as follows: My duties include investigation of  Copyright  violations against the Multichoice on the Africa Continent. I have been on this job for the past 4 years in the employment of Multichoice but I have been doing this type of work for many other Companies for the past 13 years i.e. anti-piracy job for the past 13 years. I know the Accused Persons and particularly the 3rd Accused.

Sometimes in September 2003, we received information that somebody is broadcasting our channels in Calabar.  We then filed a complaint at the Nigerian Copyright Commission regarding the matter in Calabar. On 8/9/03, we proceeded with the Nigerian Copyright Inspector  to Calabar.  We monitor the broadcast of D. E. T, (which is the subsidiary of the 3rd Accused). We confirmed that our programmes were broadcast by that channel i.e. D. E. T.  After identifying our channel, the Nigerian Copyright Inspector with me started to record the broadcast.  Multichoice Africa  is  a  pay  television  company i.e.  a customer  purchases  our  SMART CARD,  which enables them to view our programmes.  This enables the company to  monitor   its  programmes.  If  a  person  purchases   our Smart Card, he is able to view our programmes. If however he fails to pay his subscriptions, the  service is discontinued. This is done by the means of an Inscription technology device by a company  known as IRDETO.  It was through this device  that  we  were  able to  trace the Smart Card that was used to rebroadcast our programmes in this case.

In this case, the accused persons legally purchased our Smart Card. The accused persons  purchased the Smart Card for single use only as distinct  from use for example, Hotel or Club,  etc.  Even though the Accuseds’ Smart Card was purchased and registered for single use, the accused later used it for rebroadcasting operations. I want to say that if a subscriber wants to use our smart  card for commercial purpose, we usually enter into a specific agreement with that person   stipulating  the  terms  and conditions  for  which  the  smart  card  can  be  used  for  that purpose.

In this case,  there  was  no  agreement  between my company and the accused  persons  to use our channel for commercial purpose. I was able to identify the Accused’s Smart Card as engaging in illegal  rebroadcast of our  programme by the use of finger printing  technology i.e a command is sent by Multichoice Africa to all the Smart Cards. By this each Smart card will identify itself  with  a unique  code  and  that  unique  code  represents a unit smart card number. In this case, we received  the  relevant  code and  it  was  recorded  by  the Copyright Inspector. I can identify the code if the recording  is played.

On 9/9103, I in company of the copyright Inspector went to the Police Station to get the assistance of the police to carry out a raid on the spot from where the rebroadcasting operation originated. On getting there, I stayed back in the vehicle and the Copyright Inspector with the Police Officer went  into the place where the rebroadcasting took place. After sometime, I was called in to the broadcasting room of the rebroadcasting company. Upon entering into the rebroadcasting room, I saw two decoders connected  to the broadcasting equipment. The Smart Card identified by me a day before was the only Smart Card that was active in the decoder at that point in time.

I then took digital photographs of the Smart Card and the decoders photographs. The Smart Card  actively used for the rebroadcasting is Card No. 00061245189. I seek to tender the digital photographs in evidence.”

Under cross-examination,  PW1 testified at pages 16 and 17 of the record as follows:

“I want to say that a report of an alleged violation of our copyright was made by our agent  I moved in and got it confirmed the physical decoder and smart card is the property of the purchaser but the programme content remains the property of the Multichoice  Company  which  has  copyright  over  it. For  example  all the  channels which  constitute  the programme content belong to Multichoice. It is not permissible  to broadcast CNN programme through the channel of a company licensed to do so by CNN without authorization from that company……… I want to say again that the decoder (physical) was  lawfully purchased by the accused but what is wrong is the use of the smart card was put to…”

PW1 testified as to the monitoring and recording of the Appellant and co- accused.  He testified that Multichoice was able to trace the infringing broadcast through the means of an inscription technology known as IRDETO by which means the Smart Card used for the rebroadcasting was traced.  The tracing is usually done by identifying the unique code of every Smart Card by a command sent by the Multichoice Company to every Smart Card to identify itself.  It was through that means that the Smart Card by which the Multichoice programmes was broadcast by the 3rd accused was traced.  PW1 also testified that the use of a Smart Card for commercial purpose is usually subject of specific agreement between Multichoice and the purchaser and in the instant case there was no such agreement.

PW1, further testified that on getting to the business premises of the 2nd accused on 9/9103, the two transmitting decoders were found. The Smart Card earlier identified through the inscription technology was also found there and it was actively used for the rebroadcasting of Multichoice programmes by the 3rd accused, and the number of the smart card is 00061245189. Also, that the unique code number of the Smart Card as it appeared on the television  screen is BDlIKNPLSTU.  It is significant to  note  that  the  evidence  of  PW1 was not controverted or contradicted  in any material  particular.

I now come to the evidence of PW2, Elijah Johnny Akpan, a Copyright Inspector. He confirmed the evidence of PW1 about the report made and concerning the infringement of the Multichoice Company’s Copyright by the 2nd accused. PW2 at  page 19-22 of the record testified that he went to the premises of the 3rd accused where the rebroadcasting was confirmed and was even in progress. PW2, confirmed the discovery of the decoders and the Smart Card  in the  office premises of the 3rd accused. The  items recovered from the office of the 3rd accused were tendered by PW2 and they are as follows:

(1)    Exhibit A –  Copy of the inventory  of all the items seized.

(2)  Exhibits B & B1 – two Decoders.

(3)   Exhibits C & C1 – two Smart Cards.

(4)    Exhibit D – list of Subscribers of the Appellants for the year 2003.

(5)    Exhibits E & E1 – List of addresses of subscribers.

(6)    Exhibit F – Installation Forms.

(7)     Exhibit G – Appellants’ handbill.

(8)   Exhibit H – Appellants’ statement at the Police Station before PW2.

(9)    Exhibit J – Tape containing the rebroadcasts programmes of Multichoice by the 3rd accused.

Excerpts from PW2 at page 19 of the record are as follows:

“PW2: Elijah Johnny Akpan residing at No. 3 ldaha Ufon Street, Uyo, Copyright Inspector sworn on Holy Bible states as follows:

My duties include arresting those who are involved in Piracy of intellectual works. That is unauthorized use of another person’s intellectual work.  I know the accused persons. I remember  8th and 9th of September 2003.  Before the 8th of September 2003, Multichoice Company lodged a report  before the Copyright Commission complaining that the 3rd accused rebroadcast their channels without due authorization.

I wish to say that I know PW1. He  came in person to lodge the said complaint against the 3rdd accused. A letter was also written to that effect. 

I was assigned  to carry  out necessary investigation on the allegation made against the 3rd accused. On the 8 September 2003, PW1 and I came to Calabar to effect monitoring of  the alleged violation by the 3rd accused. We used Television Antenna to monitor the rebroadcasting. The channels we   monitored were K- World and CNN. I told PW1 to convince me that the channels were pirated. He called his office in South Africa (i.e. Multichoice Office). Thereafter some letters appeared on the television screen we were using for the monitoring exercise. I recorded the said letters as well as the  broadcast. I can identify the letters as recorded by me.”

In respect of Count 1, the evidence of PWs 1 and 2 proved clearly beyond reasonable doubt that the Appellant and his co-accused at the trial court had in their possession the Multichoice Satellite Decoders, Exhibits B and B1 and two Multichoice Smart  Cards, Exhibits C and C1, being equipments/contrivances for the purposes of illegally rebroadcasting/transmitting of Multichoice Programmes (Channels) in which copyright subsist in favour of Multichoice Nigeria  without consent  or authorization of Multichoice Nigeria, the copyright owners, Contrary to section  18(1) of the Copyright  Act, Cap 68 LFN, 1990, as amended.

PW2, also testified that he was able to trace the coded smart card to its user through a computer data base and that the Appellant confirmed the rebroadcast of the K-World and CNN programmes.

Again, it is significant to note that the evidence of PW2 was not controverted or contradicted. The Appellant confirmed the testimonies of PWs 1 and 2. He tendered Exhibits L, M to M2.  Exhibit L is a letter from Multichoice officer to rebroadcast their programmes. Exhibits  M –  M2 were  receipts for the Appellant’s purchase of Multichoice equipments. The Appellant in his testimony admitted that he was rebroadcasting the programmes of Multichoice Programmes. Appellant also admitted that Exhibits E and E1 contain the names of some of their subscribers and that the subscribers paid money for the subscription and that Exhibit G is the hand bills for their customers.

The 2nd accused who testified as DW2; confirmed the evidence of PWs 1 and 2. He stated that he got information in 2002 that DSTV programmes were being transmitted in Calabar by the 3rd accused. He confirmed the information when he switched on his television. He summoned the Appellant into his office and asked him why he was transmitting the programmes unauthorized. The Appellant rebuffed him telling him that there is nothing he could do about it.  It is clear from the unchallenged and uncontradicted evidence of PWs 1, 2 and the evidence of the Appellant himself and Exhibits A, B, B1, C, D, E, F, L and J, that the prosecution proved the case against the Appellant beyond reasonable doubt.

The Appellant referred to page 17 of the record and pointed out that PW1 contradicted himself.  It is important for the avoidance of doubt to reproduce the relevant portion of the evidence of PW1 under reference.  Page 17, lines 3 – 5:

“What I mean is that I saw the proves (sic) of disconnecting the decoder from the broadcasting  equipment. Not connecting as said earlier erroneously).”

The above excerpt is not a contradiction at all but an innocent error promptly corrected by PW1. In any case the question whether the decoders were connected or disconnected is not material when there is clear evidence in Exhibit J showing the rebroadcasting of the Multichoice programmes by the 3rd accused. The Appellant himself admitted that he was rebroadcasting the said programmes. The 2nd accused also stated that the Appellant was rebroadcasting Multichoice programmes.

The Appellant contended that they acquired Exhibits B, B1, C and C1 legally, therefore, the appellant’s possession of the equipment cannot be said to be unlawful.  The question here is not the possession of Exhibits B, B1, C and C1 perse by the Appellant. Section 18(1)(c) of the Copyright Act makes it an offence to possess the equipment for the purpose of making infringing copy. In the instant case, Exhibits B, B1, C and C1 were infact used for illegal rebroadcasting, which is a reproduction of a broadcast and since it is illegal, each rebroadcast is an infringing copy. To bring the issue involved here into proper perspective, it is necessary to consider what right is reserved for the copyright owner of a broadcast.  This is clearly spelt out under section 7(1) of the Copyright Act (presently section 8 of Copyright Act, Cap C28, LFN, 2004.) It provides:

“Subject to the section copyright in a broadcast shall be the exclusive right to control the doing in Nigeria of any of the following acts, that is ~  

(a)  the recording and the re-broadcasting of the whole a substantial part of the broadcast; 

(b)  the communication to the public of the whole or a substantial part of a television broadcast, either in  its  original  term  or  in  any  form recognizably derived from the original; and 

(c) the distribution to the public for commercial purposes of copies of the world, by way of rental, lease, hire, loan, or similar arrangement.”  

The Appellant contended at page 6 of the brief that Multichoice has no exclusive copyright. It is clear from the evidence of PWs 1 and 2, which was unchallenged and uncontradicted, that the copyright in the programmes broadcast belong to Multichoice. The Appellant did not indicate who owns the copyright other than Multichoice. In fact, the Appellant testified at pages 30 – 31 of the record of proceedings as follows:

I know Multichoice, the complainant. My company has a relationship with Multichoice. Multichoice gave us letter of offer to rebroadcast their programme.”  

The Appellant did not testify that any other company gave them a letter of offer for rebroadcasting or that their company had any relationship with any other  company. PW1, testified that they have exclusive right to the programmes and that for any body to air those channels in Nigeria, licence must be obtained from Multichoice. Moreover, the Appellant in his testimony admitted having approached Multichoice for a license. Section 7 of the Copyright Act, 1990, prohibits anyone to broadcast or to rebroadcast another’s programmes without obtaining licence from the original broadcaster. It is unreasonable for the Appellant to have sought for licence from Multichoice and later seek to deny the right of Multichoice, Why then did the Appellant approach Mullichoice for a licence. Apparently, the Appellant is running from pillar to post.

It is very significant to note that the Appellant did not deny that they were rebroadcasting the broadcast of Multichoice.  Rather the Appellant admitted at page 31 of the record that:

“We were only test transmitting the channels before taking the offer made to us by Multichoice.”

And at page 32 of the record, the Appellant said:

“When we acquired our equipment from Multichoice, there was nothing to indicate to us that we could not rebroadcast programmes with the equipment.”

Appellant in essence admitted that they used the decoder and smart card which they bought from Multichoice to rebroadcast Multichoice signal.

By the provisions of section 1(1)(f) of the Copyright Act, “broadcasts” shall be eligible for copyright. In section 39 of the same Act, “broadcasts”:

“Means sound or television broadcast by wireless telegraphy or wire or both, or by satellite or cable programmes and includes rebroadcast.”

Having  regard to the unchallenged evidence of PWs 1 and 2 and even the evidence of DWs 1 and 2, it is clear that the prosecution proved elements of the offences in count 1.  I therefore, find that the Respondent proved count 1 beyond reasonable doubt.

I now come to counts 2 and 4 of  the charge.  Learned counsel for Appellant contended that counts 2 and 4 are the same and they are not distinct offences, and this has occasioned substantial miscarriage of justice. Having carefully  perused counts 2 and 4 of the charge, I am of the considered view that they are separate and distinct offences.   While count 2 is punishable under section 18(2)(a) of the Copyright  Act, count 4 is punishable under section 18(3) of the Copyright  Act.

Count 2 of the charge deals with selling or letting for hire Multichoice programmes over which they enjoy copyright without authorization. Count 4 deals with the distribution without the consent of Multichoice for commercial purpose by way of rebroadcasting and transmission of Multichoice programmes. Having regard to the above, the submission of learned counsel for the Appellant is grossly misconceived and speculative.

Mr. Eteng also contended that the Respondent failed to prove counts 2 and 4 of the charge beyond reasonable doubt.  He also contended that the learned trial Judge relied on Exhibits A to F as  proof of counts 2 and 4 without appraising them properly.  Counsel argued that Exhibits A –  F are insufficient and inconclusive to prove the offences alleged in counts 2 and 4 because the 3rd accused is a Cable Television Station with a broadcasting licence to operate from the National Broadcasting Corporation.  Furthermore, counsel contended that the trial Judge should  have appraised Exhibits A – F to know whether Exhibits A – F were not for the purpose of selling or letting the services of the company (3rd  accused) as contained in Exhibit N.

By section 138(1) of the Evidence Act, if the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.  However, proof beyond reasonable is not proof beyond any shadow of doubt.  Proof beyond reasonable doubt does not mean proof to the hilt and it does not mean proof beyond all iota or shred of doubt.  If a case proved by the prosecution gets to the realm of probability, such proof will be one  beyond  reasonable doubt, doubt  kept within the  realm of reason.  See Nasiru  vs,  State (1982) 2 NWLR (pt. 87) 98; Akalezi  vs.  State (1993) 2 NWLR (pt. 273) 13 and Udosen  vs.  State (2005) 8 NWLR (PI. 928) 587 at 604. In the instant case on appeal, the prosecution produced credible  evidence which is direct and is of such quality or cogency that the court could safely rely on it in coming to a decision in the case. See Hassan v. State (supra)  and State  vs. Aigbangbee (1988) 3 NWLR (Pt. 84) 548.

On the issue of the 3rd  accused being a Cable Television Station with a broadcasting  licence  from  the  National  Broadcasting  Commission,  it  is my considered  view,  that  it  has  no  relevance  to  the  issue  of  infringement  of copyright of Multichoice.  It is one thing to have a licence to operate as a Cable Television Station but it is an entirely different thing to re-broadcast the programmes of Multichoice without their knowledge, consent or authorization. The provisions of section 2(1) of the National Broadcasting Commission Act, Cap N. 11, has nothing to do with the copyright rather it is concerned wllh, among other things, the receiving, processing and considering applications for the establishment, ownership or operation of radio and television stations including cable television services, direct satellite broadcast and any other medium of broadcasting.  See particularly section 2(1) (b)(1) of the same Act,   A Cable Television  Station is ordinarily meant to provide pay television stations and charge fees,  Exhibits A    F show the appellant’s company’s list of subscribers, installation forms for subscribers, and their handbills, it is therefore clear  and  obvious  that  the  channels  of  Multichoice  were  being  sold  to subscribers for a fee.  It is also important to note that the smart cards, Exhibits C and C1 were subscribed for individual use but was unlawfully converted to commercial   use  without  the  consent  or’  authorization  of  the  Multichoice Company.   From the evidence of PW1 and PW2 and Exhibits A, D, E &  F, counts 2 and 4 have been proved beyond reasonable doubt.  In Ezediufu   v. State (2001) 17 NWLR (Pt. 741) 82 at 113, Akpabio, JCA, (of blessed memory) held thus: “When the evidence adduced by the prosecution conclusively points to the accused as the perpetrator of the crime alleged to have been committed and the evidence  is tested,  scrutinized  and  accepted  by  the court, the onus is   on  the   accused to rebut  the resumption of guilt or to cast a reasonable doubt in the prosecution case by preponderance  or  probabilities. See also Kalu vs.  State (1993) 6 NWLR (Pt. 303) 385.”   In the instant case on appeal, the appellant did not rebut the presumption of guilt or cast reasonable doubt in the prosecution’s case,  I, therefore, resolve Issue No.1 against the appellant.

In Issue No. 2, the Appellant queried whether the learned trial Judge fully considered the defence of the appellant.   Having carefully examined and considered the judgment of the trial Judge it will be unfair for the Appellant to allege that he did not consider the defence of the Appellant fully. The main plank of the Appellant’s defence is that they were test transmitting Multichoice signals before concluding the offer of Multichoice. The simple question is who gave Appellant and his company licence to test transmit Multichoice signals?  Nobody. Was  the  test  transmission done with the knowledge, consent or authorization of Multichoice?  The answer is No. It is important to note that the Appellant at page 31 said that: ‘The equipment were duly installed by Multichoice agents.   It is not true that the channels we were broadcasting belonged to Multichoice,  We were only test transmitting the channels before taking the offer made to us by Multichoice.  That was the stage were by (sic) the agents of Multichoice came to our office …  At page 39, lines 4 -10  of the record, the appellant testified as follows: “Our communication outfit obtained licence in 1997 and we started transmitting in the year 2000.  We started retransmission of Multichoice programmes in the year 2002.  We  have subscribers in the course of our transmission Exhibits E and E1 contain the names of some of our subscribers.  The subscribers paid money for subscriptions. Exhibit G is our handbill to customers.  It contains Multichoice channels.  We have not accepted the offer in Exhibit L because this came up.  We were test transmitting the Multichoice channels preparatory to acceptance. The purpose of test transmission is to enable us to know which of the channels we would subscribe to.”  The monitoring of the Appellant’s company by PWs 1 and 2 took place on 8/9/03 and the arrest and search of the accused took place on 9/9/03.   Having regard to the above, it is ridiculous for the Appellant to say that he was test- transmitting for a whole year and more.  That defence sounds more like a cock and bull story which only the gullible will believe.  It is therefore not surprising that the learned trial Judge held at pages 71 -72 of the record as follows:

“The only  dissenting  dimension introduced into  the scenario by the 1st accused is that there was an ongoing negotiation between the 3rd  accused and the Multichoice company to enable the latter acquire the right or licence to broadcast the Multichoice programmes and that what the 3rd accused was found doing was just test-transmission, This is however contrary to his pre-trial statement made to PW2 immediately after his arrest. I take it that the dimension of test-transmission he introduced during the course of his evidence on oath in, court is no more than an after-thought.  Besides, observed the said 1st accused as a witness in the box and what saw of him gives no credit to his credibility. I noticed that  he often contradicted himself on material issues and he prevaricated on many occasions before answering questions put to him in cross- examination. He was not steady and he gave himself out as one who was desperate to pervert the  truth  in his attempt to free himself. He is not a truthful and worthy witness and his evidence is rejected wherever they contradict those of the 1stand 2nd  PWs.”

I could not agree more with the trial Judge. I have considered the contention that the trial Judge did not appraise Exhibits A – F vis a vis, Exhibit K very carefully.  It is well settled law that a court must consider all defences raised by an accused in a trial court no matter how stupid they may be.  See Ibikunle  vs.  State (2005)  1 NWLR (PI. 907)  387  at 405,406    and 411;  Ahamba  vs.  State (1992)  5 NWlR  (PI. 242)  450  and Udo vs. State (2005)  8 NWLR (Pt. 928) 521 at 539 –  540.   It is also trite law that a trial court must in fulfillment of its duty consider the totality of the evidence before the court, that is, aspects which are favourable and those not favourable.   It is after such duty that the court then comes to a conclusion as to whether or not the case was established beyond reasonable doubt.  Qaidi  vs.  State (2005)  5 NWlR  (Pt. 918) 286  at 311 _ 312 and Obue vs.  State (1976) All NLR 139,    In the instant case on appeal,  I am satisfied that the learned trial Judge considered the defence of the appellant fully in its judgment at pages 70 –  72 of the record before arriving at the conclusion that the prosecution proved its case beyond reasonable doubt.  I must mention that Exhibit K is a letter from the Nigeria Broadcasting Commission. It is a broadcasting licence for the 3rd accused to operate as a Cable Television Station. It is not a licence from Multichoice for the appellant to broadcast or rebroadcast Multichoice programmes or channels.  The appellant himself at page 31, lines 35 said: “My company has a relationship with Multichoice. Multichoice gave us letter of offer to rebroadcast their programme.  The one shown to me is the said letter of offer.  I seek to tender it.”  The said letter was admitted as Exhibit l.  Now, if Exhibit K allows the appellant, (as alleged) at page 38,  lines 17 -18   of the record, to lest-transmit other  peoples  programmes,  then  why did the  appellant  and  their company obtain Exhibit L from Multichoice?  Apparently, the appellant was being economical with the truth.  The confusion and prevarication of  the appellant was robustly demonstrated in his testimony at page 37, lines 22 – 27, page 38, lines 18 –  28 and page 39, lines 1 –  2 of the record.   For ease of reference and  clarity,  have chosen to reproduce them herein below.   Page 37, lines 22 – 27:  “DW1:   Cross-examined (Reminded of his oath:  I do not  know  who  owns  the  Movie  Magic  Channel, Channel 0,  Discovery, Super Sports and Discovery Channels.   We test-transmitted them even though do not know the origin of the channels.   Court Note: Witness was confronted with his pretrial statement  (Exhibit  H) where  he  stated  that Multichoice is the owner of the channels –  Court is of the view that witness is not a truthful witness.’

 Page 38, lines 18-20, the appellantas DW1 continued: “Witness: The Smart Cards contained in Exhibits ° and 01 were used programmes in CNN Channel 0, Movie Magic Mne!, Super Sports and K-World.  Multi- choice  was  paid  for  those  smart  cards  which  we purchased  from  them.  We  purchased  the  smart cards to test-transmit programmes on those channels mentioned  above  Exhibit  K  letter  from  N.  B.  C.)  Permits us  to  transmit other peoples programmes.   Exhibit L is the permit given to us by Multichoice to transmit some programmes contained therein. The  programmed  permitted  in  the  said document do not include Channel  O,  Movie  Magic, Mnet, Super Sports and K-World contained in and 01 which we transmitted through our Smart Card.  Court Note: Court notes the misdemenour(sic) of this witness and finds that he is nol a witness of truth.  He earlier  said  he did not know whether  or  note  (sic) Exhibit  L  contains  the  Channels  O,  Mnet  Movie Magic, Super Sports and K-World mentioned about.”

Page 39, lines 1   2:  “Court:  It  was  only when  the  court  asked  that  the documents  be shown to him the  second time  that (after prevaricating) he admitted the truth.” The trial Judge was amply justified in his finding that the appellant was not a witness of truth.   It is trite that an appellate court will not interfere with the findings of a trial court on the credibility of a witness.  In Obun  vs.  Ebu (2007) 6 WRN 105 at 155, lines 15   25, this Court held thus:  “It is well settled that the evaluation and ascription of probative value to duly admitted evidence is the prerogative of   the   trial   court   which   had   the opportunity  of  seeing, observing  and  hearing  the witnesses.  An appellate court which did not see or hear witnesses nor observe their demeanour in the witness box should be reluctant to interfere with the decision  of  the  trial  court or tribunal  founded  on facts    unless    such   decision   is   unreasonable, perverse or not supported by the evidence   Having carefully perused and examined the record, I  am of the considered view that the trial Judge considered the defence of the appellant and reached a correct decision,   Therefore, the finding of the trial court cannot be interfered with.  See Ebba  vs.  Ogodo (2000) 17 WRN 95 and Asikpo  vs.  Ekene (1999) 5 NWLR (pt.  607) 578 at 589.  I, therefore, resolve Issue No.2   against the appellant.

In Issue No.3,   the question is whether in sentencing the appellant, the trial Judge exercised his discretion judicially.  It is necessary, at this juncture, to examine the sentences passed by the trial court at page 61 of the record,  They are as foliows: “The 1stconvict (appellant) is sentenced as follows: Count 1:  12 months imprisonment with hard labour. Count 2:  3 months imprisonment with hard labour. Count 4:  3 months imprisonment with hard labour. Sentences to run concurrently II is the above sentences that the appellant is complaining about.  Section  18 (now 20) of the Copyright Act under which the appellant was charged and convicted prescribes a fine or term of imprisonment or both fine and imprisonment.  The maximum sentence provided for Count 1 of the charge is 5 years.

The learned trial Judge gave a lesser sentence of 12 months imprisonment.  Moreover,  as the sentences  in the three  counts  are to  run concurrently, it means the appellant will only serve 12 months in prison for all three counts in the charge.  II is well sellied  that  in mailers  of discretion  no one  case can be an authority for another and one court cannot be bound by a previous decision to exercise its discretion in a particular way because it would in effect be pulling an end to discretion.  See Atiku  vs.  State (2002) 33 WRN 110.  An appellate court will not interfere with a sentence imposed by the trial court unless the sentence is manifestly excessive in the circumstances of the case or is wrong in principle.  See Dowling  vs.  I. G. P. (1961) All NLR 782 and Laja  vs.  I. G. P. (1961)  An  NLR  715.

The  sentences  imposed  on  the  appellant  are  not manifestly excessive having regard to the punishment provided under section 18 of the Copyright Act, and neither are thE?Ywrong in principle.  Where, as in the instant case on appeal, the trial court has judiciously and judicially exercised its discretion, this court will not interfere with it by substituting its own discretion. See Salami   vs.   Kotoye (1990) 4 NWLR (PI. 143) 144.   I, therefore, resolve Issue No.3  against the appellant.  Having resolved all three issues against the appellant, it follows that the appeal is bereft of merit.

II. JUDGEMENT

Accordingly,  this  appeal  be and is hereby dismissed. The judgment, conviction and sentences imposed by Ajakaiye, J., in Charge No. FHC/CA/31C/2003 are hereby affirmed.  Appeal dismissed.

K. B. AKAAHS, JCA

I had a preview  of the judgment  of my learned brother Omokri, JCA.  He meticulously reviewed the evidence adduced at the bial.  I am in total  agreement with  his reasoning and conclusion that the appeal is bereft of any merit and it is accordingly dismissed.  The conviction  and  sentences  imposed  on the  appellant  on  counts  1, 2 and 4 which are to run concurrently are hereby affirmed

T. N. ORJI-ABADUA. J.C.A.

I agree entirely  with  my learned  brother,  Jean Omokri,  J.C.A, in the  lead judgment  just  delivered  by him.  I abide by all the orders  made therein

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