Microsoft Corporation V. Franike Associates Ltd. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

RITA NOSAKHARE PEMU J.C.A (Delivering the Leading Judgment)

This is an Appeal against the ruling of the Honourable Justice S.I. Shuiabu of the Federal High Court, Lagos Division in Suit No.FHC/L/CS/610/05 delivered on the 7th of June 2006, striking out the entire suit on the ground that the court lacked the jurisdiction to entertain and determine the Plaintiff’s claim. The Plaintiff/ (now Appellant) claims against the Respondent (now Defendant).

The circumstances necessitating this Appeal can be aptly put as follows:

By Writ of Summons dated 23rd June 2005, the Appellant initiated a suit against the Respondent at the Federal High Court, Lagos, which Writ of Summons was filed along with a motion ex- parte as well as a Motion on Notice. A Statement of Claim was also filed on that date; and in its paragraph 27, the Plaintiff (now Appellant) had sought the following reliefs inter alia:

(i) A DECLARATION that the Plaintiff as owner of the copyright stated herein is the only person (either by itself or by its licences and or agents) authorized by law to exercise copyright on the wide range of Microsoft Software, Programs and Products.

(ii) A DECLARATION that the Defendants by its/their acts complained herein have infringed the copyright of the Plaintiff in the Microsoft Software, Programs and Products copies into the hardware they offered for sale to the public.

(iii) A PERPETUAL INJUNCTION restating the Defendant ‘ and all those on whose behalf they are sued, whether acting by themselves, their directors, officers, servants, agents / or privies or otherwise or howsoever from doing the following acts or any of them, that is to say:

(a) Selling by way of trade, expressing or offering for sale or distributing for the purposes of trade without licence of the plaintiff any copies of the said Microsoft and or windows software or any reproductions of the Plaintiffs said software, Programs or product and from authorizing any of the acts aforesaid.

(b) Converting to their own use infringed copies of the Plaintiff’s software, programs and or products.

(c) Installing or loading unto any hardware, hard disc/DVD or otherwise infringing by any other means howsoever or causing enabling and otherwise assisting howsoever others to infringe the

Plaintiff’s copyright Microsoft software programs and or products.

(iv)

(v)

(vi)