Cowpact Disc Technologies Ltd & Ors. V. Musical Copyright Society Of Nigeria Gtd (Mcsn) (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

IBRAHIM M. M. SAULAWA, J.C.A. (Delivering the Leading Judgment)

The instant interlocutory appeal was filed by the Appellants against the ruling of the Federal High Court, Lagos Judicial Division holden at Lagos, which was delivered by the Honourable Justice J. E. Shakarho, J. on the 5th day of August, 2008, in Suit No. FHC/L/CS/713/2007, involving the parties herein.

It is discernible from the record of appeal, that the Respondent had filed a Writ of Summons and Statement of claim, on 2nd August, 2007 in the lower court, seeking various orders of declaration and perpetual injunction against the Appellants. By the statement of claim thereof, the Respondent has explicitly sought the following reliefs against the Appellants:

a. A DECLARATION that the acts of the Defendants without the authority or permission of the Plaintiff of importing, recording reproducing, distributing, offering for sale, communicating to the public and publicly performing or playing the said musical works an audio and video devices such as tapes or video compact disc and/or similar devices at its stores is an infringement of the Plaintiffs copyright as guaranteed by the copyright Act, 1988 (as amended).

b. AN ORDER OF PERPETUAL INJUNCTION restraining the Defendants by themselves, assigns, agents and servants from further importing, reproducing distributing, offering for sale, publicly performing/playing and communicating to the public any of the said works or any works for that matter from the Plaintiffs repertoire without the Plaintiffs’ authorization or permission.

c. AN ORDER OF PERPETUAL INJUNCTION directing the Defendants jointly and severally whether themselves, assigns, agents and servant or howsoever from further infringing, or continuing to infringe the copyright in the audio or audio visual musical works from the Plaintiffs repertoire.

c(sic) AN ORDER for delivery up to the Plaintiff of all copies of said musical works on Audio and video devices such as tapes, video compact discs and or similar devices of musical works listed in paragraph 11 and 12 above.

d. Special damages in the sum of N250,000,000:00

d(sic). General damages in the sum of N100,000,000:00.

On 1st November, 2007 the Appellants filed a memorandum of conditional appearance, a statement of defence and counter claim, respectively, in the court below. By the said statement of defence thereof, Appellants urged the lower court to-

‘dismiss the claim in its entity for lack of merit, lack of locus standi, brought in bad faith and deserving of substantial costs in favour of the Defendants’.

The Appellants equally counter claimed against the Respondent for the sum of N200,000:00 (Two Hundred Million Naira), as general damages for loss of income, damage to business reputation, damages to brand recognition and exemplary damages. See pages 261-268 of the Record.

On 8th February, 2008 the Appellants filed a Motion on Notice, praying the lower court the following relief:

‘1. AN ORDER dismissing this Suit on the ground that the Plaintiff/Respondent as an alleged owner assignee and exclusive licensee lacks the locus standi, under Section 15A and Section 328 of the copyright Act (As amended) 1999, to commence and plead the reliefs sought in this suit’.