The Lagos Division of the Court of Appeal has ordered Multichoice Nigeria to pay N5.4 billion as damages to the Musical Copyright Society of Nigeria for copyright infringement.

In a unanimous judgement delivered on May 29, the court upheld the decision of the federal high court that the MCSN was the exclusive owner of the body of some musical works over the Nigerian territory.

Festus Ogbuinya, who read the lead judgment and the two other judges – Gabriel Kolawole and Bilikisu Aliyu who agreed with him – resolved seven of the nine issues for determination in favour of MCSN.

“The judgment of the lower court, which is submissive to comprehension, is not antithetical to the pleadings and evidence presented before it by the feuding parties,” said Mr Ogbuinya.

“It utilised the evidence the parties presented before it as adumbrated above. The finding does not, in the least, smell of any charge of perversity levelled against it by the appellant.”

The judge said Multichoice Nigeria was “stingy” in illustrating how it was afflicted with a miscarriage of justice.

“From the concrete evidence, the reasonable probability to earn a favourable result in its favour was, with respect, an echo of mirage.”

“On the whole, having resolved the live issues one, three, four, five, seven, eight (partly), and nine against the appellant, the fate of the appeal is obvious. It is bereft of any grain of merit and deserves the penalty of dismissal. Consequently, I dismiss the appeal.”

The court, however, did not order the payment of N200 million and N300 million general and aggravated damages respectively against the multinational granted by the lower court.

Multichoice Nigeria had dragged the MCSN to court in 2011 after the music body wrote to it demanding N4.1 billion as cumulative copyright and royalties for musical contents used by the company in its programmes.

According to the company, it is not obliged to pay to MCSN royalties for material used in programming on DSTV because the body is not licensed by the Nigerian Copyright Commission.

But the MCSN argued that the musical works in question were assigned to it by two international organisations, Performing Rights Society and Mechanical Copyright Protection Society.

While delivering his judgement in January 2018, Mohammed Idris struck out Multichoice’s claims against the Nigerian body.

‘A JURISTIC PERSONALITY’
In his judgement, Mr Ogbuinya noted that although the appellant (Multichoice) accused the respondent (MCSN) of not having a certificate of incorporation, there was no record of it before the court challenging its legal status.

“There is, perhaps, a possible reason for the appellant’s failure to challenge the legal status of the respondent, ” Mr Ogbuinya said.

“It would be recalled that at the time the appellant filed its pleading, its claim was still bubbling with viability and vitality. At that time, it could not have queried the legal capacity of the respondent it had sued. To do so would have meant robbing the lower court the jurisdiction to entertain its claim against a non-juristic person. The law frowns on it.”

Mr Ogbuinya said the appellant, in its pleading, starved the court the crucial assertion that questioned the legal capacity of the respondent to institute a counter-claim.

“In view of these, I will not label the first respondent as a non-juristic unit, stripped of the capacity to sue or defend the counter-claim in the lower court, in order not to insult the law.”

“Contrawise, I crown it with the toga of a juristic personality with all the attendant rights and liabilities appurtenant to it.”

The judge also faulted the failure of the appellant to produce its broadcast logs despite the lower court’s command.

“The absent broadcast logs, justifiably, cried for the attention of the lower court to douse the damning evidence of the respondent.”