Case 1

N THE FEDERAL HIGH COURT HOLDEN AT LAGOS NIGERIA ON MONDAY THE 26TH DAY OF MARCH, 1990 BEFORE THE HONOURABLE JUSTICE S.A. TOFOWOMO JUDGE SUIT NO. FHC/L/43/89

BETWEEN:

MUSICAL COPYRIGHT SOCIETY NIGERIA LIMITED. PLANTTIFF/RESPONDENT
AND
NIGERIA HOTELS LIMITED…………………………….DEFENDANT/APPLICANT

R U L I N G

The plaintiff’s claim as endorsed on the writ of summons filed on the 2nd of June, 1989 states as follows:-

“The plaintiff’s claim against the Defendant is for the sum of N7,095.68 being the amount of royalty arising from breach of contract for the use of plaintiff’s copyright music by the defendant at its various hotels throughout the Federation of Nigeria from 1976 to date.”
“The plaintiff has made repeated demands on the defendants to pay these royalties but the defendants have refused, failed and/or neglected to pay in spite of repeated demands.”
“And the plaintiff claims the said amount together with interest and costs.”

On the 26th of July, 1989 pleadings were ordered; and the plaintiff filed its statement of Defence, on the 22nd of September, 1989 the Defence Counsel filed notice of preliminary objection pursuant to order 27 of the Federal High Court (Civil Procedure) Rules 1976 and the inherent jurisdiction of this Court praying for an order dismissing the case on the following grounds:-

1. That the plaintiff has no locus standi to ask for the relief sought;
2. That the case discloses no reasonable cause of action; and
3. That the agreement referred to in the Statement of claim is unenforceable as it is ex facie, ex turpi causa.

In his argument the learned Counsel for the defendant lumped the three grounds together and referred to paragraph; 1 and 4 of the three plaintiff’s amended statement of claim against the defendant as agent, its principal in England cannot claim. The plaintiff has not in any way in his statement of claim disclosed that there is in existence a valid subsisting enforceable contract between the plaintiff, the defendant and the principal in England as disclosed in paragraph 1 in the amended Statement of claim. For the principal to claim against the defendant, he must comply with section 8 of the Exchange Control Act, 1962. There is nothing in the Statement of Claim to show that the consent of the Minister of Finance was ever obtained by the disclosed principal or its agent to enter into any contract which he is seeking to enforce to this Court.

The writ of summons showed that the plaintiff was claiming for royalties without showing that it has complied with Section 7 of the National Office of the Industrial property Decree, 1979 which requires all contracts between Nigerians and foreigners for the payment of royalties to be approved by this office before any payment could be made upon any such contract. The writ of summons and Statement of claim have not stated any particulars whatsoever of the alleged copyright infringement or the mode of the said infringement. He then urged the Court to dismiss the plaintiff’s claim.

In his reply the learned Counsel for the plaintiff submitted as follows:-

That the submissions and arguments of the learned Counsel for the defendant are erroneous and misconceived. On ground one, he referred to Section 15 (1) of the copyright Decree, 1988 relating to action for infringement, and that the plaintiff acted as an assignee amongst the three groups of persons who could institute action; and in spite of foreign artists and exclusive licensee. Reference was made to paragraph 1 of the plaintiff’s amended statement of claim as to the facts that the plaintiff acted as an assignee and exclusive licensee to both local and foreign artists respectively. And furthermore, the plaintiff in this suit is an interested party in the outcome of this action as it stands to be affected one way or another, with reference to Thomas v. Olufosoye (1986) 1 NWLR Part 18 at 669 at page 670 relating to the issue of locus standi. On this ground the learned Counsel for the Plaintiff urged the Court to hold that the plaintiff has locus standi in this case.

On ground two, the Court is enjoined to look at the plaintiff’s amended Statement of claim and if the plaintiff’s claim discloses any cause of action. The plaintiff’s cause of action is disclosed in paragraphs 7 to 10 of the amended statement of claim. The plaintiff’s cause of action is found on a breach of contract of the defendant’s failure to honour and fulfill their past, present and royalty payment obligations, with reference to Thomas v. Olufosoye cited above, at page 671 relating to cause of action.

On ground three, the National Office of Industrial Property Decree, 1979 does not apply to copyright matters and therefore does not regulate any matter touching and concerning copyright matters. That section 7 of the Decree is not relevant. Also section 8 of The Exchange Control Act relating to remission of foreign exchange does not apply to the plaintiff’s cause of action as shown in the amended statement of claim; and consequently the question of obtaining the consent of the Minister of Finance does not arise.

I have closely examined the grounds of objection raised by the learned Counsel for the Defendant/Applicant and the submissions of both learned Counsels. The issues arising are:
1. Has the plaintiff disclosed his locus standi in his statement of claim to institute the action?

2. Has the plaintiff in the statement of claim disclosed any reasonable cause of action against the defendant?

3. Is the agreement referred to in the statement of claim ex facie and ex turpi causa and as such unenforceable?

On ground one, to say that the plaintiff has no locus standi to ask for the reliefs sought means that he has no legal capacity to institute the action before the Court. The term locus standi is used interchangeably with terms like “standing” or “title to sue”: See Adesanya v. the President of the Federal Republic of Nigeria and anor (1981) NCLR 358 per Fatai Williams CJN. A failure to disclose any locus standi is as fatal to the action as failure to disclose any reasonable cause of action. See Gambioba and others v. Insesi and others (1961) All NLR 670.

I have gone through the statement of claim to see whether or not the plaintiff has a locus standi. In the amended statement of claim filed on the 26th of October, 1989, the plaintiff averred as follows:-

1. The plaintiff is a Limited Liability Company incorporated under the Laws of Nigeria and Acts as exclusive licensee for the Performing Right Society Limited of London (hereinafter called “the PRS”) for the purpose and business of licensing, collection and distribution operations of copyright musical works and royalties in Nigeria and abroad; and also act as assignee of musical works belonging to Nigerian Composers and authors of music.”

2. By an Exclusive Licensee Agreement executed and dated 27/3/86 and 14/4/86 the PRS transferred its assets and liabilities in Nigeria to the plaintiff Company which informed the Defendant Company thereof by letter dated 13/7/87 and 17/9/87.”

3. Before the agreement aforesaid, the PRS has always enforced the copyright of Composers and authors of music with the Defendant through out Nigeria right from 1957 before it appointed as Agents in 1972 the firm of Giwa & Atilade Solicitors which later became Messrs. Giwa & Company, Solicitors, in or about 1979 when Chief Atilade became the President of the Industrial Arbitration Court.”

From the contents of paragraphs 1-3 of the amended statement of Claim, it is very clear that the plaintiff has stepped into the view that the plaintiff has legal capacity as to its civil right and obligations in the action. All that has happened was that the plaintiff has stepped into the shoes of the Performing Right Society Limited of London and acquired its rights and obligations and so, I strongly hold the view that the plaintiff has the required locus standi to maintain the action.

On ground two, to say that the plaintiff’s case discloses no reasonable cause of action means that the Statement of claim or the particulars of claim disclosed some cause of action which is not reasonable and not tenable in Law. In Republic of Peru v. Peruvian Guano Co. 35 Ch,D page 495 it was stated that in point of law every cause of action is a reasonable one. On very close examination of the amended statement of claim the plaintiff averred as follows:-

7. By an agreement reached in 1985 – vide the then PRS Agent’s letter dated 3rd October, 1985 and the Defendant’s reply thereto dated 28th October, 1985 – between the plaintiff and the Defendants, the Defendants agreed to meet and fulfill their past, present and future royalty payment obligations up to the year 1990 upon the plaintiff agreeing to give an overall discount of 20% per annum on such royalties.”

8. The Defendants met or fulfilled their promise in respect of some of their hotels up to a point but defaulted in respect of others during the period agreed in the agreement as stated below in the particulars:-

PARTICULARS OF AMOUNT DUE AND OWING AMOUNT DUE AND OWING
                                                                                          LESS 20% DISCOUNT

9. The plaintiff has made repeated demands on the Defendants to pay this debt but the defendants have failed and/or neglected to pay in spite of repeated demands.”

10. The plaintiff will rely on all documents referred to in the statement of Claim and all other documents to and in any way connected with their claim against the defendant at the trial of this action.”

From the facts as stated in the above-mentioned paragraphs it is unreasonable to say that the plaintiff’s claim discloses no reasonable cause of action. The statements are facts which are materials to be proved to enable the plaintiff to succeed: See Cooke v. Gill (1873) LR 8CP 107 per Brett J at 108. And so long as the statement of claim or particulars of claim disclose some cause of action or raise some question fit to be decided by the Court, the mere fact that the case is weak and not likely to succeed is no ground for striking it out; see Moore v. Lawson 31 TLR 418 CA.

On ground three, that the agreement referred to in the statement of claim is unenforceable as it is ex facie and ex turpi cause, is, to my mind, a premature ground of objection since the agreement is going to be given in evidence for the consideration of the Court; and it is at that stage that such objection if properly founded would be upheld.

In the final analysis, I find that all the Acts or Decrees cited by the learned Counsel for the Defendant/Applicant have no relevance to the plaintiff’s claim and all the grounds of objection lack merit. And the objection is hereby overruled.

SIGNED
S. A. Tofowomo
Judge
26/3/90