Court of Appeal Lagos rules in Favour of NCC Against MCSN

21 December 2016

The Court of Appeal sitting in Lagos on December 9, 2016 delivered judgement in favour of the Nigerian Copyright Commission (NCC) in an appeal filed by the Commission in CA/L/350/13 Between Nigerian Copyright Commission & ORS Vs Musical Copyright Society of Ltd/GTR & 7 ORS challenging the fundamental rights enforcement suit instituted against it by the Musical Copyright Society of Nigeria (MCSN) in FHC/L/CS/1163/12.

In the appeal argued on October 19, 2016, the Court of Appeal by a decision unanimously upheld all the five (5) grounds argued by the Commission and set aside the judgement of Justice Yunusa of the Federal High Court (FHC) Lagos.

The Five (5) grounds of appeal raised by the Commission are as follows:

  • That the learned trial judge erred in law when he held that the position of the law is, that for a suspect to be arrested and for the arrest to be valid, there must be a valid warrant of arrest or an order duly issued by a court of competent jurisdiction in the absence of which it can be concluded that the Respondent acted rashly without following due process of law.
  • That the learned trial judge erred in law when he held that the items seized from the Respondents were seized without a valid search warrant and therefore the seizure was unlawful.
  • That the learned trial judge erred in law when he ordered an immediate release of all the equipment, files, documents and all materials seized from the office of the Respondents by the Appellants when such items are subjects of pending criminal trials.
  • That the learned trial judge erred in law when he held that the activities of the Respondents are legal and constitutional.
  • That the learned trial court erred in law when it granted an order that the continuous detention, harassment, intimidation, threat and torture of the Respondents is unlawful and a breach of their fundamental rights.

The Court of Appeal in its judgement held that Copyright Inspectors of the Commission did not need any warrant of arrest from the Court to carry out arrest of the respondent and to seize the incriminating materials.

The court further dismissed the argument raised in the Cross Appeal by the MCSN that the High Court erred in law by not awarding damages to them after holding that their fundamental rights has been  infringed. A cost of Fifty Thousand Naira (N50, 000) was consequently awarded against the respondent.

The judgment is of great significance to the commission in the following ways:

  • It is a further interpretation and justification of Section 38 sub section (2) (a) of the Copyright Act which empowers the Copyright Inspector to enter, inspect and examine at any reasonable time any building or premises which he reasonably suspects is being used for any activity which is an infringement of copyright under this Act: (b) arrest any person who he reasonably believes to have committed an offence under this Act.
  • The Copyright Inspector has all the powers, rights and privileges of a Police Officer but does not need an arrest warrant arresting any person who has committed any act of Copyright Infringement.
  • Preservation of evidence is very vital in any criminal case. While the criminal case is still pending before Justice Yunusa of the FHC, he ordered the release of incriminating evidences recovered during the investigation.
  • The criminal case against MCSN has been resurrected because by virtue of the judgement, all the necessary evidence has been preserved by the court.
  • By virtue of the judgement, MCSN activity is illegal and unconstitutional. Approval by the Nigerian Copyright Commission is needed before any Collecting Society can commence operation as enshrined in Section 39 of the Copyright Act.
  • The anti-piracy operation does not constitute harassment as the Court has not placed a lien or limitation to the powers of the Copyright Inspector to investigate cases of infringement.
  • Above all by the judgement, the Court of Appeal is stating that the Fundamental Human Rights of the respondents were not violated.

It will be recalled that following reports of petitions received by the Commission between August and September 2012, complaining about MCSN and its officials performing the duties of a Collecting Society without the approval of the Commission, an offence and crime punishable under Section 39(4), (5) and (6) of the Copyright Act, a preliminary investigation was conducted to determine their involvement.

The report of the preliminary investigation found MCSN and its officials liable. The Commission’s Copyright Inspectors followed this up with an anti-piracy operation in the premises of MCSN in Lagos on September 18, 2012. Several incriminating files and documents were seized with the arrest of some MCSN officials who were granted administrative bails after offering voluntary statements.

The Commission filed six (6) different charges against MCSN and seven (7) of its officials on October 10, 2012.

In the charge, the proof of evidence disclosed that materials seized from the Accused will be used as evidence in the criminal trial against them by the Commission being the Complainant in the criminal charges.

While the criminal charges against the accused were pending in court, the Accused on November 14, 2012, served the Commission with a fundamental rights enforcement Suit. The same fundamental rights Suit was assigned to same Justice Yunusa of the Federal High Court.

On March 18, 2013 the court presided over by Justice Yunusa went ahead to hear the fundamental rights case while the criminal charges filed by the Commission against the accused were still pending.

In his judgement, Justice Yunusa ruled against the Commission and held that the fundamental rights of the accused were violated in the arrest and seizure of the incriminating materials.

The Court ordered the Commission to release all materials and files seized from the Accused persons despite the fact that the Commission had argued that these materials and files will be used in evidence at the criminal trial against the accused pending in the same court. However the court did not award any charges to the accused.

The Judgement of the Federal High Court prompted the Commission to file an appeal against the decision of Justice Yunusa by raising five (5) grounds of appeal while the accused also filed a cross appeal arguing that no damages were awarded to them.

Meanwhile, the three (3) criminal charges pending before Justice Yunusa has been reassigned by the Chief Judge of the Federal High Court to Justice Kwewumi of the same court. The case has been adjourned to February 24, 2017 for further hearing.


Amos Abutu

For: Director-General

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