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

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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

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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

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