The highest court in the land, the Supreme Court, has once again affirmed that the Musical Copyright Society Nigeria (MCSN) doesn’t need the approval as collecting society or an exemption as one to enforce it rights.
In a unanimous decision, a panel of five Justices of the Supreme Court decided on14th December 2018, that Section 15(a) (now Section 17) and Section 32 (now Section 39) of the Copyright Act, as amended, which require a collecting society to seek the approval or exemption of the Nigerian Copyright Commission (NCC) before it can enforce its rights do not apply to the Musical Copyright Society Nigeria (MCSN).
In an appeal filed by MCSN at the apex court in Suit No. SC 425/2010between MCSN vs. Compact Disc Technology Ltd, Nu Metro Home Entertainment (WA) Ltd and Nu Metro Retail Nigeria Limited, the panel, consisting of Honourable Justice Mary Peter-Odili(JSC), Honourable Justice Olukayode(JSC), Honourable Justice Ariwoola (JSC), Honourable Justice Kudirat Kekere-Ekun,(JSC), Honourable Justice Amina Adamu Augie(JSC) and Honourable Justice Sidi Dauda Bage(JSC), set aside the decision of the Court of Appeal which held that MCSN can’t enforce its rights unless it is approved as a collecting society or given an exemption by the NCC.
In the lead judgment delivered by Mary Ukaego Peter-Odili (JSC), the Supreme Court held that, “I am in agreement with submission of the learned counsel for the appellant, that Copyright (Amendment) Decree No. 42 of 1999 which introduced Section 15A(now 17) is not retrospective.
In fact, the Decree specifically stated its commencement date to be 10th of May 1999. Based on the above, I am of the humble opinion that since the law makers have specifically stated that commencement date for the Decree “to be 10th May, 1999”, it is clear that the law maker never intended the decree to have a retrospective effect. We rely on and adopt the statement of law in the case of AFOLABI v Governor of Oyo State (1985)16 NSCC (Pt.2) Vol. 16, page 11512 as follows:-
“A law is said to have retroactive effect when the commencement date is earlier in point of time than the date of commencement, for example, Tribunal of inquiry(Validation etc) Decree No. 18 of 1977 which was considered by this Court in the case of UWAIFO v AG Bendel State & ors(1982)13 NSCC 221 at 232,was dated the 18th day of March, 1977 but therein stated specifically that it shall be “deemed to have come into effect on 29th July, 1975”
Indeed the commencement of the Copyright (Amendment) Decree No. 42 of 1999 was clearly provided for to be 10th May, 1999 which is not earlier than 1986 and 1990 when the exclusive rights in the copyright works were transferred to the appellant.
The issue therefore raised on retrospectivity of the Act can be said to have been settled by this Court as seen in the case of Ojokolobo & Ors v. Alamu & Ors (1987) 2 NSCC 991, wherein it was held per Karibi-Whyte, JSC thus “the presumption of retrospective is displaced by the provision of a commencement date which is a future date ”
Continuing, Mary Peter-Odili (JSC) added, “In fact the learned counsel for the appellant has referred this court to the earlier recent case before this court in Adeokin Records & Anor v Musical Copyright Society of Nigeria(Ltd/GTE) delivered on the 13th July, 2018 which lead judgment was delivered by Ejembi Eko (JSC) which settled the questions right before this court now. That decision impels this court to hold that the exclusive licence of the copyright musical works which forms the basis of the suit at the trial court was transferred to the appellant since 1986 and 1990 respectively while the provisions of the Copyright Act, 2004 came into force on the 10th day of May, 1999 and so the Act cannot be said to affect the rights already transferred long before its commencement date.
Therefore, just as the court held in Adeokin Records & Anor v Musical Copyright Society of Nigeria (supra) on 13/7/18, the matter is properly before the trial Federal High Court and since the Court of Appeal went outside the clear situation, this court is best suited to intervene and hold that the position taken by the Court below is not the proper stand as supported by facts on ground in context with the necessary statutory provisions. The conclusion is that the appeal is allowed and the decision of the Court of Appeal set aside with the restoration of the decision of the High Court. It follows that the matter is remitted to the Chief Judge of the Federal High Court for assignment to a Judge to have the matter determined on its merits expeditiously.
Appeal allowed. Parties to bear own costs”
In her own concurring ten-page judgment, Honourable Justice Kudirat Motonmori Kekere-Ekun reasoned further that the Respondents can not go outside the Appellant’s pleadings to justify their assertion.
“Locus standi or “Standing to sue” denotes the legal capacity to institute proceedings in a court of law. It has been held to be a threshold issue which has a fundamental bearing on the entire adjudication. It goes to the root of the competence of the court to entertain the proceedings. It is settled law that where a plaintiff lacks locus standi to institute an action, the court would have no jurisdiction to entertain it.See:DANIEL VsINEC(2015)LPELR-24566(SC) @ 47 A-D,Thomas and It’s Vs Olufosoye(1986) 1 NWLR (PL699, Adesanya Vs President of FRN and And. (1981)5 SC112.
It is also settled law in determining whether a party had locus standi, the court. would have recourse to the plaintiff’s pleadings only. Standing to sue does not depend on the success or merit of the claim but on the interest of the plaintiff in the subject matter of the suit. See: Banisnvo Motors Ltd VsWoermann-Lime andAnor(2009)13NWLR(Pt.1157)149,FawehinmiVs Skill (1987)12 SC. 136, AdesanoyeVs Aureole (2006)14NWLR(Pt.1000)242.
As rightly asserted by learned counsel for the Appellant, a cursory look at the statement of claim would show that there is nowhere therein where it pleaded that it is a collecting society. The respondents cannot go outside the appellant’s pleadings to justify their assertion”.
The learned Jurist identified another issue, which she defines as crucial issue is whether the provisions of Section15 (A) of the Copyright Act, as amended are applicable in this case. She reasoned thus: “It is settled that it is the law existing at the time the cause of action arose and not the law at the time the suit was instituted that would govern the suit. See: Alibi VsOduntan(2000)7 SC (or II) 106, Adesanoye Vs Aureole (supra), OgboruVsUduaghan(2011)LPELR-8236(SC)@28-29 G-A.”
Justice Kekere-Ekun underscores yet another relevant principle of law; which is that in the interpretation of statutes, “there is a presumption against retrospective application unless it is expressly so stated in the statute. See:OjokoloboVs Alamo (1987)3 NWLR (Pt.61)377@ 402F-N,where this court held, inter alia:
“There is the presumption against intending justice or absurdity. It is one of the guiding canons of construction and interpretation of statutes. Upon this presumption rests the leaning against giving certain satutes retrospective operation. Generally, statutes are construed as operating only in cases or on facts which come into existence after the statutes were passed unless a retrospective effect is clearly intended. It is a fundamental rule of Nigerian Law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in terms of the Act or Law, or arises by necessary and distinct implication”
It was further held that:
“A statute is retrospective which takes away or impairs any vested right acquired under existing laws or creates a new obligation, or arises a new duty or attached a new disability in respect to transactions or consideration already past”
Based on its pleadings, the Appellant acquired its copyright in the various musical works in issue, as far back as 1984.In other words, as at that time it had vested rights, which were capable of being protected. The acquisition of the rights preceded the enactment of the Copyright Act and the establishment of the Nigerian Copyright Commission. The Respondents were unable to satisfy this court that the amendment of Section15 of the Copyright Act by the Copyright (Amendment) Decree No. 42 of 1999 which introduced Section 15A (now Section17 of the Copyright Act cap 28 LFN 2004) ,had retrospective application. This is particularly important, as the commencement date of the amendment is 10th May, 1999.
By virtue of it being an owner, assignee and exclusive and absolute licensee of the copyright in the works in issue, the appellant had vested rights, which included the right to institute an action for infringement of copyright, which could not be taken away by section 15A of the Act. The appellant therefore had the requisite locus standi to institute the suit before the trial court and there was no feature of the case that prevented it from assuming jurisdiction.”
Her Lordship finally anchored her judgment on the earlier decision of the Court in Adeokin Records Co &Anor vs. MCSN,“Besides, this case is on all fours with the earlier decision of this court in: Appeal No. SC. 336/2008: Adeokin Records &Anor. Vs MCSN ltd/GTE delivered on 13/7/18 wherein the appeal of the Respondent against the finding of the trial court that the Appellant, as owner, assignee and exclusive licensee had locus standi to institute the action, was dismissed. We are bound by our decision”
The three other members in their respective judgments concurred with the lead decision. The recourse to the Supreme Court arose when MCSN sued Compact Discs Technology Ltd, Nu Metro Home Entertainment (WA) Ltd and Nu Metro Retail Nigeria Ltd. in 2007 for the violation of its copyright. As a defence the defendants claimed that having no approval as a collecting society or an exemption from the NCC, MCSN had no locus standi to institute the suit under the Copyright Act as amended.
Justice J. E Shekarho of the Federal High Court thought otherwise and ruled in favour of MCSN.
The defendants disagreed with the ruling and appealed to the Lagos division of the Court of Appeal. The Court of Appeal panel of I. M. M Saulawa (JCA), P. A. Galinje (JCA) and R. O. Nwodo(JCA) agreed with Compact Discs Technology Ltd and its sister companies that without NCC’s approval or exemption, MCSN had no locus to institute the case.
Dissatisfied, MCSN through its counsel, DA Awosika and Associates, appealed the decision of the Court of Appeal to the Supreme Court which now set aside the decision of the Court of Appeal.
MCSN was represented by Dada Awosika Esq. and N. F. John (Miss).