Guinness Nigeria Plc V. Musical Copyright Society of Nigeria (Ltd/Gte) (2016)
LawGlobal-Hub Lead Judgment Report
UZO I. NDUKWE-ANYANWU, J.C.A.
This is an appeal against the decision of the Federal High Court sitting in Lagos delivered on the 17th day of November, 2006 by Hon. Justice M. L. Shuaibu (as he then was) dismissing the Defendant/Appellant’s Notice of Preliminary Objection.
By a Writ of Summons together with a Statement of Claim dated 26th August 2005, the Claimant now Respondent claimed as follows:-
?a. General damages in the sum of N28,660,000,00 (Twenty-eight Million, Six Hundred and Sixty Thousand Naira) only.
b. Exemplary damages for use of the said work in the sum of N100,000,000,00 (One Hundred Million Naira) only.
c. Interest on the licence fees at the rate of 21% from the date of infringement to the date of institution of this action.
d. Interest at the rate of 10% from the date of judgment until satisfaction thereof.
e. A Perpetual Injunction restraining the Defendant jointly and severally by themselves, their Directors, employees, servants, agents, and privies or otherwise however from further infringing the copyright of the Plaintiff.”
It is the case
1
of the Respondent that they are the owners, assignee and exclusive licensee of the right to authorize public performances in Nigeria in respect of the musical works of various authors and composers which included musical works in the repertoire of the Performing Right Society Ltd (PRS) of Copyright House, 29/33 Berners Street, London WIP 4AA and American Society of Composer, Authors and Publishers (ASCAP) but to mention a few. They contended that sometime between 1996 and 2005, the Appellant organized a musical show where several of their musical works were played without authorization by them. They also contended that several letters were sent to the Appellant informing them of the infringements but got no reply from the Appellant. Hence the Respondent commenced this action against the Appellant for breach of copyright in the musical works on the grounds that the Appellant was not granted a license for the use of the said musical works.
In response, the Defendant now Appellant entered conditional appearance and filed its Statement of Defence on 30th day of September, 2005. In addition to its Statement of defence, Counsel also filed a Preliminary
2
Objection for the dismissal of the suit on the following ground:
“The Plaintiff is not a licensed collecting society and their demand from the Defendants is illegal and contrary to provisions of the Copyright Act.”
It is the case of the Appellant that the Respondent being an Incorporated Company with over 50 members carrying on the business of negotiating and granting licenses and performing the functions of a Collecting Society does not have the approval of the Nigerian Copyright Commission. Thus its demand for license fee and subsequent action at the trial Court is illegal. Hence, he filed the preliminary objection.
No Counter-Affidavit in opposition to the preliminary objection was filed by the Respondent. However, Counsel for the Respondent made oral submission on the date reserved for the hearing of the Preliminary objection.
In its ruling, the learned trial judge raised a fresh issue for determination as follows:
“Whether or not the Plaintiff has a locus standi to bring the present action.”
Wherein it held that the Plaintiff/Respondent has the requisite Locus Standi and then dismissed the Appellant’s objection.
The
3
Appellant being dissatisfied with the ruling filed a Notice of appeal on 30th November, 2006 consisting of three (3) grounds of appeal, In accordance with the rules of this Court parties have filed their respective briefs.
When the appeal was heard, the Appellant relied on the Appellant’s brief of argument filed on 1st November, 2010, The Appellant articulated three issues for determination:-
“(1.) Whether the Respondent/plaintiffs demand for a licence fee from the Appellant/Defendant or the Respondent/Plaintiffs act of suing the Appellant/Defendant for the, latter’s failure to negotiate or be granted a licence of the Respondent is illegal, same being contrary to the provisions of the Copyright Act, in that the Respondent a company limited by guarantee with over 50 members engages in the business of negotiating and licensing of copyright works without the approval of the Nigerian Copyright Commission.
(2) Whether the trial Court did err in law when it assumed jurisdiction based on locus standi when the grounds of the preliminary Objection filed, canvassed and argued was on illegality of the Respondent/plaintiffs claim.
(3) Whether the
4
Lower Court was right in holding that the Court of Appeal decision in the case of MUSICAL COPYRIGHT SOCIETY OF NIGERIAL VS. ADE OKIN was binding on it when the Court of Appeal’s judgment which was per incuriam, was on the issue of locus standi and not the issue of illegality of the Respondent negotiating and granting licences without the approval of the Copyright Commission which was the basis of the Appellant’s motion before the trial Court”
The Respondent filed their brief on 24th day of November, 2010 and in addition filed a Notice of Preliminary objection on 24th of November, 2010 praying this Court as follows:
“That this appeal is incompetent”
The objection was predicated on the under mentioned grounds:
1. The appeal is academic.
2. The Appellant’s grounds of appeal being one of mixed law and fact and leave to appeal was neither sought nor obtained.
The respondent also raised a sole issue for determination as follows:
“Has the decision of the Lower Court led to a miscarriage of justice in this case?”
The Appellant reply brief was filed on 7th day of December, 2010
?ISSUE 1
Learned counsel for the Appellant submitted that once the issue
5
of illegality of a contract has been raised, the Court is duty bound to determine such issue first and where illegality is established by the Court, any right arising there from will be extinguished or unenforceable. He also submitted that the Court can suo motu refuse to enforce a contract when a contract is ex facie illegal even though the illegality was not pleaded by the Defendant. He relied on the case of Agip (Nigeria) Ltd v. Agip Petroleum International & 7 Ors (2010) LPELR SC.351/2002; Sodipo v. Lenninkainen Oy (1988) 1 NWLR (Pt.15) 220; Alao v. ACB Ltd. (2000) 9 NWLR (Pt.672); Saleh v. Monguno (2006) 15 NWLR (Pt.1001), (2006) 7 SC (Pt.ii) 97; SDC Cementation (Nig) Ltd & Anor v. Nagel & company Ltd (2003) 4 NWLR (Pt.811) 611,
According to counsel, the Appellant in Paragraph 7, 8, 9, 11 and 12 of its Statement of Defence raised the issue of illegality of the Respondent’s contracts and activities. It is the contention of counsel that the Respondent, an Incorporated Company Limited by guarantee with over 50 members carrying on the business of negotiating and granting of copyright licenses and collecting and distributing royalties on
6
behalf of its copyright owners without the approval of the Nigeria Copyright Commission amounted to an offence under Section 39 of the Copyright Act. He contended that by the provision of Section 39 of the Copyright Act for the Respondent to act as a Collection Society, it must seek and obtain the approval of the Copyright commission. He referred to Section 39(2), (4) and (5) of the Copyright Act. Hence the Respondent’s demand for license fee and subsequent action at the trial Court is illegal.
Counsel further contended that for the Respondent to maintain an action for infringement of copyright, it ought to have been approved by the Nigerian Copyright Commission. He relied on Section 17 of the Copyright Act CAP C28 LFN 2004. Therefore, failure of the Respondent to comply with Section 17 of the Copyright Act (a condition precedent) makes the Respondent’s case fatally defective hence affecting the Lower Court’s jurisdiction to hear the case ab initio. He referred to the case of A.G. Akwa Ibom State v. Essien (2004) 7 NWLR (Pt.872) 28; Dangtoe v C.S.C. Plateau State (2001) 9 NWLR (Pt.717) 132.
ISSUE 2
Learned counsel for the Appellant submitted
7
that it is trite that the Court must make a pronouncement on all the issues canvassed before it. Thus the trial judge erred in law when rather than base his judgment on the issue of illegality of the Respondent’s claim as canvassed by the Appellant, the trial judge suo motu formulated a new issue and ruled on Locus Standi. He contended that, had the trial judge ruled on the issue of illegality rather than the issue of locus standi, it would have held that it had no jurisdiction to entertain the case.
He also contended that the failure of the trial judge to call on parties (Appellant in particular) to address it on the issue raised by the Court was a breach of the Appellant’s constitutional rights to fair hearing.
ISSUE 3
It is the contention of Counsel for the Appellant that the decision in Musical Copyright Society v Ade Okin (supra) is not binding on the Court below as the facts in that case can be distinguished from the instant case as follows:
1. While the instant case was commenced after and under the Copyright Act CAP C28 LFN 2004, the Ade Okin’s Case was commenced before the coming into effect of the earlier mention Act.
8
2. While the instant case is based on the Issue of illegality of the Respondent’s action for falling to complying with Section 17 and 39 of the Copyright Act, in the Ade Okin’s case the ruling of the Court of Appeal was strictly based on the issue of locus standi.
3. The Ade Okin’s case was decided per incuriam.
He thus urged this Court to uphold this appeal and dismiss the Plaintiffs case in the Court below.
Learned Counsel for the Respondent on the other hand, in arguing its first ground of his preliminary objection submitted that the complaints contained in ground 1 to 3 of the ground of appeal are purely academic. According to counsel even if the complaint is right it would not have made any difference to the outcome of the decision of the trial Court. To that extent, the complaint is academic. In respect of the second ground, counsel submitted that it is trite that leave of Court is necessary where an appeal is lodged on grounds of fact or mixed law and fact. He contended that where leave is required but not obtained, the ground of appeal concerned will have to be struck out. He relied on the case of OGBECHIE v. ONOCHIE (1986) 2 NWLR (Pt 23)
9
SC 484; SECTION 241 & 242 1999 CONSTITUTION; UBN PLC v SOGUNRO (2006) 16 NWLR (Pt.1006) SC 504, It is the contention of counsel that the grounds of appeal in this case are grounds of facts or mixed fact and law and yet no leave was obtained. He thus urged this Court to strikeout this appeal.
In respect of its sole issue, counsel submitted that there is no miscarriage of justice for different reasons including:
1. The decision of the Lower Court to raise a new issue out of the Appellant’s preliminary objection was based on both the issue canvassed and the proceedings.
2. The Appellant did not prove there was any miscarriage of justice.
3. The learned trial judge considered the evidence submitted by the Appellant in proof of his allegation of illegality and held them inadmissible.
In his reply, learned counsel for the Appellant submitted that contrary to the submission of the Respondent’s counsel, no leave is required to appeal because the grounds of appeal involved questions of law i.e. the interpretation and application of the Copyright Act. Also the Appellant’s objection in the Court below was based on the jurisdiction of the
10
Court to hear the matter.
The issue of jurisdiction can be raised at any time without leave of Court. He referred to Section 241(b) of the 1999 Constitution and Section 24 of the Court of Appeal Act; Total Inter. Ltd v. Awogboro (1994) 4 NWLR (337) 147; F.B.N Plc v. Fashar (2000) 6 NWLR (Pt.662) 573; Abubakar v. Yar’adua (2008) 4 NWLR (Pt.1078) 465.
Counsel also contended that the Respondent’s submission that this appeal is academic because the Appellant did not challenge the issue of Locus Standi is misconceived. He referred this Court to ground 1 of the Notice of Appeal which is solely based on the issue of locus standi. He further contended that the appeal is not academic as it deals on the violation of Appellant’s right of fair hearing.
In his reply to the Respondent sole issue, counsel for the Appellant contended that the failure of the trial judge to rule on the noncompliance with the provisions of initiating actions of this nature under the Copyright Act (Sections 17 and 39 of the Copyright Act) and the breach of the Appellant’s right to fair hearing is more than enough injustice suffered by the Appellant. He also contended that in proof
11
of substantial injustice Counsel relied on the amount the Respondent would have stolen had it been the Appellant yielded to its illegal demand for license.
He further contended that the admissibility of the Appellant’s documentary evidence at the trial Court is irrelevant to the Appellant’s objection. In other words it wont have affected the Appellant’s objection. Appellant urged the Court to allow this Appeal. The Respondent filed a Preliminary objection on 2 grounds viz:
“1) That the appeal is academic.
2) That the Appellant’s grounds of appeal being one of mixed law and facts and leave to appeal was neither sought nor obtained.”
I will first of all trash the second ground. The Respondent filed a notice of Preliminary Objection stating that the Respondent filed grounds of mixed law and facts and therefore the Appellant needed to seek for leave to file a Notice and Grounds of Appeal.
?Counsel to the Respondent argued, that in the Lower Court the learned trial Judge held that the illegality was not proved. The trial judge went on to state that the relevant facts in the affidavit evidence of the Appellant was based on hearsay and that
12
the Exhibits A – C attached to the affidavit were uncertified copies of public documents. He therefore held both exhibits and affidavits as inadmissible.
The Appellant in his reply contended that the grounds of appeal are grounds of law. The Appellant argued that both grounds of appeal involved the interpretation and application of the Copyright Act. Counsel argued that the Appellant does not require the leave of the Court to file this Appeal.
A glossary look at the 2 grounds set out below will show whether the grounds are of law or of mixed law and fact.
?2. PART OF THE RULING OF THE LOWER COURT APPEAL AGAINST:
(a) The whole ruling dismissing the DEFENDANT/APPELLANT PRELIMINARY OBJECTION to the Lower Courts jurisdiction to hear the Plaintiff/Respondent’s case.
2. GROUNDS OF APPEAL
(1) The learned Trial Judge erred in law by dismissing the Appellants Preliminary Objection on the grounds of locus standi when the objection was based on illegality.
The Plaintiff is not a licensed collecting society and their demand from the Defendant is illegal and contrary to provisions of the Copyright Act.
PARTICULARS OF ERROR<br< p=””
</br<
13
(a) The Appellant Notice of Preliminary Objection borders on illegality of the Respondent case in the Court below while the ruling of the trial judge dismissing the objection was based on locus standi of the Respondent.
(b) The Respondent not being a licensed collecting society is acting illegally by asking the Appellant to pay licensed fees or damages for Copyright infringement as stated in its claim,
(c) The learned Trial judge misdirected himself in law by not adopting and applying the provision of Section 17 of the Copyright Act 2004 with reference to limitation to the right of action.
(d) By dismissing the Appellants objection based on locus standi which was not a ground of the objection and neither conversed by parties, the Court wrongly hold that it has jurisdiction to hear the matter.
(2) The learned trial judge erred in law by not ruling or making a pronouncement on the grounds of illegality of the Respondent’s case.
PARTICULARS:
(a) By not ruling on the illegality or otherwise of the Respondent’s case, the trial Court did not decide the bane of the Appellants Preliminary Objection, rather ruled on an issue which is not
14
before the Court
(3) The Trial Judge erred in law by holding that the Court of Appeal’s ruling in the case of MUSICAL COPYRIGHT SOCIETY OF NIGERIA (LTD/GTE) VS ADEOKIN RECORDS & ANOR suit No. CA/L/498/97 is binding on it.
PARTICULAR
By not considering the provision of Section 15A of the Copyright Act vis-a-vis the present case and distinguishing it from the above stated case, the trial Judge wrongly held that the said case was binding on him.
FURTHER TAKE NOTICE THAT FURTHER GROUNDS OF APPEAL WILL BE FILED ON RECEIPT OF A COPY OF THE RULING.
(4) RELIEFS SOUGHT FROM THE COURT OF APPEAL
(a) Allow this Appeal
(b) Set aside the ruling of the Lower Court and holding that the Lower Court has not jurisdiction to entertain this case.”
Ground one talked about the Locus-Standi of the Plaintiff/Respondent based on the alleged illegality of the Respondent’s case.
Both the question of Locus Standi and the illegality of the Respondent’s activities are questions of law.
The question of
“Locus Standi or standing to sue is an aspect of justifiability and as such the problem of Locus standi surrounded by the same
15
complexities and vagaries inherent in Justiciability. The fundamental aspect of Locus Standi is that, it focuses on the party seeking to get his complaint before the High Court not on the issues he wishes to have adjudicated.
Per Mohammed JSC in Ijelu & Ors. v. LSDPC & Ors, LPELR 1464, Karibi-whyte JSC held in Oduneye v. Efunuga (1990) LPELR 2208.
“Accordingly Locus standi will only be accorded to a Plaintiff who shows that his civil rights and obligations have been or are in danger of being violated or adversely affected?.
See Thomas v. Olufosoye (1986) 1 NWLR Pt.18 page 669.
‘Locus STANDI is the legal capacity to institute proceedings in a Court of law.”
The Appellant as Defendant in the lower Court alleged that the Respondent had no legal right to institute this action, based on the fact that the Respondent had no license to do what it is purporting to do.
The Appellant alleged in its preliminary objection in the Lower Court and it is couched thus
“GROUNDS:
The Plaintiffs not a licensed collecting society and their demand from the Defendants is illegal and contrary to provisions of the Copyright Act.
AND FURTHER take Notice that the defendant will at the hearing of
16
the Objection rely on all the various documents and correspondences between the Plaintiff and the Nigerian Copyright commission and other documents in support of this Objection.
The Appellant alleged illegality as part of the grounds of its preliminary objection. The learned trial Judge in his wisdom formulated a sole issue which read thus:
“whether or not the Plaintiff has locus standi to bring the present action.”
Whether the Respondent has Locus Standi to bring this action is very fundamental. In answering this question the learned trial judge must deal with the illegality of the Respondent’s activities. The trial judge must take cognisance of the materials placed before it, See page 123 – 125 of the Record of Appeal.
Whenever the jurisdiction of the Court is challenged, the Court must first of all assume jurisdiction to decide whether in clear and unequivocal terms, it has or lacks jurisdiction. AG Lagos State v. Dosunmu (1989) 3 NWLR Pt.111 page 552. The preliminary Objection alleged the question of Locus Standi as a result of illegality of the Respondent’s activities.
Normally the procedural requirement that an issue of jurisdiction
17
should be resolved first does not mean that it must be treated separately. It can be taken along with arguments on the merits of a case. The important thing is that the Court should first express its views on the issue of jurisdiction before considering the merits of the case. The advantage of such proceeding is that in the event of an appeal by any of the parties, it is easy for the Appellate Court to express its views on the decision of the Lower Court as to jurisdiction and the merit of the case, and thereby remove the necessity for two appeals; the one as to the jurisdiction of the Court, and the other as to the merit of the case; see Senate President v. Nzeribe (2004) 9 NWLR Pt.878 page 251.
In the Court below, the learned trial judge supposedly dealt with the Locus Standi without considering the question of illegality of the Respondent’s activities which resulted in the institution of this appeal.
The learned trial judge jettisoned the relevant materials that could have helped in dealing with the issue of the alleged illegality of the activities of the Respondent. The alleged illegality of the activities of the Respondent ought to be addressed
18
to get to the issue of Locus Standi of the Respondent.
As I said earlier in this judgment, the issue of Locus Standi borders on the jurisdiction of the Court to adjudicate on any issue. For an action to be properly constituted so as to vest jurisdiction in the Court to adjudicate on it, there must be a competent Plaintiff and a competent Defendant. See Afaguba & Co. vs. Guka Nig. Ltd. (2005) All FWLR Pt.265 (2005) 2 SCNJ pg.139.
The Appellant/Defendant in his Preliminary Objection filed an affidavit of 6 paragraphs sworn to by one Augustine Egbuonowo. In it the Appellant deposed as follows –
“Augustine Egbanowo, Male, Nigerian, Christian and a Litigation Clerk of 27/29, King George v. Road, Onikan, Lagos do make oath and state as follows:
1. That I am a Litigation Clerk in the law firm of Chief G. O. Sodipo & Co., Counsel to the Defendant/Applicant in this case.
2. That by virtue of my position deposed to above, I am conversant with the facts of this case.
3. That I have the consent and authority of both my employer and the applicant to depose to this Affidavit.
4. That I was informed by Daniel Ozoma Esq. and I verily
19
believe him to be true thus:
a. That the Plaintiff lack the pre-requisite locus standi to demand royalties from the Defendant because it is not approved as a collecting society by the Nigerian Copy Right Commission.
b. That the Nigeria Copyright Commission which is saddled with the responsibility of co-ordinating and approving a collecting society had on the 14th day of May 1995 through the Vanguard Newspaper placed a Public Notice warning members of the public to desist from paying royalties to the plaintiff. A Photocopy of the said Newspaper publication is herein marked ?Exhibit A?.
c. That the Plaintiff in reaction to the said Public Notice, Responded by publishing a Counter in the Sunday times of 4th June 1995 wherein it denied acting or purporting to act as a collecting society the said publication is herein exhibited as “Exhibit B”
d. That prior to these events, the plaintiff had earlier applied to NCC for approval to act, as a collecting society and the NCC demanded that it be furnished with some information which the Plaintiff failed to furnish, upon which the NCC refused to approve it and expressly warned it to desist
20
from demanding royalties from the public. A copy of the said refusal letter is herein exhibited and marked “Exhibit C”
e. That until now, the Plaintiff has not been approved by NCC as a collecting society and the demand from the Defendant is illegal and violation of the provisions of the Copyright Act.
f. That the NCC had prior to now instituted many criminal actions against the plaintiff for acting illegally and most of the actions are still pending in Courts.
5. That the Plaintiffs case should be dismissed as being a calculated attempt meant to harass the Defendant and lacking in merit
6. That I make this affidavit in good faith believing same to be true in accordance with the oaths Act”.
The affidavits had 3 Exhibits attached to it. The 3 Exhibits were certified by the Chief Registrar of Federal High Court, Lagos. They were the documents referred to in the affidavit. The trial Judge held in his Ruling refusing to admit the affidavit holding that it contained hearsay evidence and that the documents attached were not certified.
I have recapped the affidavit in support of the Preliminary Objection filed by the Respondent
21
challenging the Locus Standi of the Respondent to institute this action. The trial judge also refused to admit the Exhibits holding that they were not certified as they were public documents.
The Appellant exhibited the documents to support his allegation of illegality against the Respondent in his affidavit. An affidavit is a statement of fact which the maker or deponent swears to be true to the best of his knowledge. It is a Court process in writing, deposing to facts within the knowledge of the deponent. It is documentary evidence which the Court can admit in the absence of any unchallenged evidence. See Akpokiniovo v. Agas (2004) 10 NWLR (Pt.881) pg.394.
The Respondent did not challenge any of these depositions and therefore the trial judge should have considered it together with the exhibits in the determination of the Locus Standi of the Respondent. It must be emphasized that the burden is on the Plaintiff/Respondent to prove that he had the Locus Standi to commence this action. Failure to discharge this burden, the Respondent’s action must fail.
The Respondent tried to collect money for copyright from the Appellant when, it had no license
22
so to do. See the Appellant’s affidavit in support of the Preliminary Objective and the attached Exhibits.
Exhibit A is a Newspaper publication of Vanguard of Sunday May 14, 1995 where it denied the Respondent. The Copyright Commission in Exhibit B Daily Times Newspaper advert of Sunday June 4th, 1995 continued in its denial of the Respondent. Exhibit C is a letter from the Nigerian Copyright Council stating that it had not approved the Respondent as a Collecting Society.
These are materials which the trial judge ought to have considered in determining the Locus Standi of the Respondent. An action cannot arise from an illegal course. See Pan Bisbilder (Nig) Ltd. v. FBN Ltd. (2002) 1 NWLR Pt.642 page 684.
Where the Appellant/Defendant relied upon the defence of illegality, he should distinctively raise it and State facts or refer to facts already stated in the statement of claim so as to show clearly what the illegality is. If a man intended to challenge illegality, he must state facts for the purpose of showing what the illegality is. Ekwunife v. Wayne (WA) Ltd. 1989 5 NWLR Pt.112 page 371, AIC Ltd. v. NNPC (2005) 11 NWLR Pt.937 page 563, (2005)
23
5 SC Pt.11 page 60.
The Appellant in his Preliminary Objection, the supporting affidavit and the accompanying exhibits showed categorically that the Respondent was embarking on illegal activities without licence.
The Respondent having not secured the approval of the Nigerian Copyright Commission was demanding for monies illegally. The Court can never lend its hand to that. The Respondent therefore had no locus standi to initiate this suit against the Appellant. This Appeal is meritorious and therefore allowed. The judgment of the Lower Court is hereby set aside.
I make no orders as to costs.
Other Citations: (2016)LCN/8910(CA)
