Visafone Communications Limited V. Musical Copyright Society Of Nigeria (Ltd/gte) & Anor (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ADAMU JAURO, J.C.A. (Delivering the Leading Judgment)

The appeal herein emanated from the proceedings of 6th April, 2009 before the Federal High Court Lagos, coram, Archibong. J.

The facts culminating in this appeal are straightforward and simple, a concise summary is hereby made as follows. The respondents as plaintiffs instituted the action in the court below by writ of summons dated 26th May, 2008, alleging infringement of their copyright. The respondents prayed the court in their statement of claim of same date, for a “declaration that the public use and authoritation of the musical works “La Bamba, Ijoya, and Ninja Bike by the defendant without the knowledge, licence and or consent of the plaintiffs is wrong and unlawful.” The aforementioned relief was followed by injunctive reliefs and damages.

After entering appearance and filing its statement of defence, the appellant filed a notice of preliminary objection dated 28th October, 2008. The preliminary objection sought for the dismissal/striking out of the entire suit pursuant to Section 17 and 39 of the Copyright Act, Cap.C28 Laws of the Federation of Nigeria 2004.

The objection was premised on the ground that the “Plaintiffs lack the requisite locus standi to institute the action” having been operating as collecting societies without the licence or approval of the Nigerian Copyright Commission. On 6th April, 2009 when the appellants counsel had commenced his submissions on the objection, the learned trial judge interjected as follows on page 107 of the record:

“will direct that we proceed to trial because the regulatory provisions cited in the Copyright Act seem to me to be of doubtful constitutional validity. But this is not a decision or Ruling on same. Rather it is a direction that final addresses assuming the Plaintiff sufficiently states it case will address the constitutional validity or otherwise of Section 17 of the Copyright Act and any other provisions of the Act which restrict or constrain the rights of proprietory owner to protect and enforce same.

23rd and 24th June, 2009 for trial.

(SGD)

Hon . Justice C.E. Archibong

JUDGE

6/4/2009”

Dissatisfied with the aforementioned direction or order of the trial court, the appellant appealed against same vide a notice of appeal dated 20th April, 2009 anchored on three grounds of appeal. The said grounds of appeal and their particulars are hereby reproduced in verbatim, as further reference will be made to them in the course of this judgment.

“GROUND OF APPEAL

Ground One