Copyright Infringement: Appeal Court Upholds MCSN’s Right to Sue

The Court of Appeal, Lagos Division has ruled that the Musical Copyright Society of Nigeria (MCSN) can sue for the infringement of its works.

Justice Shagbaor Ikyegh upheld MCSN's right to sue in a decision supported by Justices Amina Augie and Jamilu Yammama Tukur.

The appellate court held that the appellant (MCSN) as owner, assignee and exclusive licensee of the copyright, had the statutory standing to sue vide the elaborate decision of the court copied from the case of MUSICAL COPYRIGHT SOCIETY (NIG) LTD v ADEOKIN RECORDS.

Consequently, the appellate court set aside the decision of Justice Tajudeen Odunowo (retired), formerly of the Federal High Court, Lagos, striking out a suit filed by Musical Copyright Society of Nigeria (MCSN) LTD/ GTE) against Details Nigeria Limited for lack of locus standi to initiate the action.

The court in the judgment also ordered the remission of the suit to the chief judge of the Federal High Court for determination by another judge.

MCSN had sued Details Nigeria Limited (the respondent) demanding the sum of N100 million as damages over alleged infringement of their musical copyright by the respondent.

However, after obtaining Anton Pillar Orders against it, Details Nigeria Limited (respondent) filed a notice of preliminary objection challenging the legal right of the appellant to institute the action on the ground that MCSN lacked the locus standi to bring the action, because it was not approved as a collecting society by the Nigerian Copyright Commission.

Upon hearing the preliminary objection, Justice Odunowo struck out the suit on the ground that MSCN did not possess the locus standi to institute the action.

Dissatisfied with the ruling, MCSN filed an appeal, arguing that the Federal High Court was wrong to rely on a newspaper publication by the Nigerian Copyright Commission (NCC) in the nature of a disclaimer notice to determine their status.

MCSN argued that it had the legal right to bring the action more so, when the newspaper report was not part of the processes filed by the appellant in support of its case.

MCSN contended that the lower court upheld the preliminary objection on the basis that the appellant is a collective society whereas its claim was based on section 15(1) of the Copyright Act as amended, now Section 16(1) of the Copyright Act 2004, which entitles the owner, assignee, exclusive licensee to bring an action for the infringement of copyright.

The appellant also contended that having regard to the fact that it commenced operations before the Copyright Act first came into force in 1988, which was re-enacted in 1970 and which did not make provision for the registration of a collecting society that the appellant, even if it is

a collecting society, was not required to register itself with the NCC and that the application the appellant had made to the NCC for its registration under section 32 B (1) of the Act should be considered as a mere formality.

But the respondent, which formulated one issue for determination contended that the capacity of the appellant to sue was inhibited or hindered by section 32 B (now Section 39) of the Act, the legal right and capacity of the appellant to clothe itself with the standing to sue to bring the action was absent and struck at the root of the jurisdiction of the court below to entertain the action following the case of the PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA v ADESANYA (1982) 2 NCLR.

It further argued that the decision of the federal high court striking out the action for lack of legal standing of the appellant to initiate it is right and should not be disturbed and that the appeal should be dismissed in consequence.

But Justice Ikyegh in the lead judgment noted that where a statute confers on a plaintiff the right to sue, the statutory right to sue abrogates a common law principle of locus standi to the contrary and vests the court with jurisdiction to entertain the action based on the statutory right to sue accorded the plaintiff.

In finding merit in the appeal on the issue of locus standi, the appellate court set aside the decision of the Federal High Court that the appellant lacked the standing to sue under the 1988 Act as subsequently amended by the 1992 Act under which the cause of the action arose town, in Amuwo-Odofin area of Lagos State.

According to him, part of the family land was acquired by the Federal Government for the construction of Festac town in Lagos some years ago.

He stated that following a series of letters between the Kuje family and the Federal Ministry of Land, Housing and Urban Development, it was revealed that 4.017 hectares of the family land was acquired by the Federal Government adding that the remaining portion of the land was subsequently released to the family.

According to the deponent, the Kuje chieftancy family is made of seven branches which are, Olofin, Ajoke Iyekantan, Ikugbomola, Ommoya, Ogbebusin Pekun, Odu Akande and Emidawo Akaketu branches.

He added that the Kuje family engaged the services of the 2nd applicant to manage the land released to the family by the Federal Government.

He stated that to the surprise of the applicants, the 2nd–7th respondents allegedly created a pseudo family name known as Adeyi Orofin chieftancy family and executed a Power of Attorney in favour of the 1st respondent.

The deponent stated that before the family could complete all necessary investigations as to the cause of the alleged interference with the family land, the 1st – 7th respondents wrote a petition to the police against them.

He stated that the applicants have been harassed, intimidated and arrested on several occasions, adding that unless the respondents are restrained, they will continue to violate their constitutional rights.