Nigerian Copyright Commission v. MTN Nigeria Communications Limited & Others

Law Cases and Principles

Nigerian Copyright Commission v. MTN Nigeria Communications Limited & Others

In the Federal High Court
Judgement delivered on: March 20, 2024
Citation: 67 NIPJD [FHC. 2024] 111/2024
Charge No.: FHC/ABJ/CR/111/2024
Jurisdiction: Nigeria

Judicial Officers:

  • Honourable Justice Inyang Ekwo (initial proceedings)
  • Honourable Justice Umar Mohammed (subsequent proceedings following the Attorney General of the Federation’s takeover of the prosecution)

BETWEEN

Nigerian Copyright Commission
— Prosecution

AND

MTN Nigeria Communications Limited
Karl Olutokun Toriola
Nkeakam Abhulimen
Fun Mobile Limited
Yahaya Maibe
— Defendants

Copyright Infringement, Musical Works, Sound Recordings – The Nigerian Copyright Commission (NCC) instituted a three-count criminal charge against MTN Nigeria Communications Limited, its Chief Executive Officer, Karl Olutokun Toriola, Nkeakam Abhulimen, Fun Mobile Limited, and Yahaya Maibe, alleging the unauthorised commercial use of musical works and sound recordings belonging to Maleke Idowu Moye, a Nigerian musician and comedian, as Caller Ring Back Tunes (CRBTs). The Attorney General of the Federation subsequently withdrew the charges against MTN Nigeria Communications Limited, Karl Toriola, and Nkeakam Abhulimen, while the prosecution continued against Fun Mobile Limited and Yahaya Maibe under an amended charge.

I. FACTS

The Nigerian Copyright Commission commenced a three-count criminal prosecution against MTN Nigeria Communications Limited; Karl Olutokun Toriola, Chief Executive Officer of MTN Nigeria; Nkeakam Abhulimen; Fun Mobile Limited; and Yahaya Maibe.

The Commission alleged that, between 2010 and 2017, the defendants offered for sale, sold, traded, and distributed the musical works and sound recordings of Maleke Idowu Moye, a Nigerian musician and comedian, by making them available to MTN subscribers as Caller Ring Back Tunes (CRBTs) without his consent or authorisation. According to the Commission, its investigation revealed that the defendants had committed copyright offences arising from the unauthorised commercial exploitation of the works.

II. CHARGES

The Nigerian Copyright Commission filed a three-count criminal charge against MTN Nigeria Communications Limited, Karl Olutokun Toriola, Nkeakam Abhulimen, Fun Mobile Limited, and Yahaya Maibe, alleging offences under sections 20(2)(a), (b), and (c) of the Copyright Act, Cap. C28, Laws of the Federation of Nigeria, 2004.

COUNT ONE

That you, (1) MTN Nigeria Communications Ltd., (2) Karl Olutokun Tariola “m”, (3) Nkeakam Abhulimen “f” all of MTN Plaza, Falomo Round About, Ikoyi, Lagos and (4) Fun Mobile Limited, (5) Yahaya Maibe “m” both of No. B24 NICON Town, Lekki, Lagos sometime between the period of 2010 to 2017, within the Judicial Division of the Federal High Court, did sell, exposed and/or offered for sale for the purposes of trade or business, infringing copies of the whole or substantial parts of the musical works/sound recordings which include 911, Minimini-wanawana, Stop racism, Ewole, 911 instrumental, Radio, waist, and No bother; by using them as Caller Ring Back Tunes, without the consent authorisation of Maleke Idowu Moye in whom copyright subsists and thereby committed an offence contrary to and punishable under section 20 (2) (a) of the Copyright Act, Cap. C28, Laws of the Federation of Nigeria, 2004.

COUNT TWO

Count Two alleged that the defendants distributed the musical works and sound recordings of Maleke Idowu Moye to MTN subscribers as Caller Ring Back Tunes (CRBTs) without the consent or authorisation of the copyright owner.

COUNT THREE

Count Three alleged that the defendants had in their possession the musical works and sound recordings of Maleke Idowu Moye for purposes other than private or domestic use.

Musical Works and Sound Recordings Identified

The musical works and sound recordings identified in the charge included:

  • 911
  • Miniminiwanawana
  • Stop Racism
  • Ewole
  • 911 Instrumental
  • Radio
  • Low Waist
  • No Bother

III. PRELIMINARY OBJECTION

Before arraignment, MTN Nigeria Communications Limited challenged the jurisdiction of the Federal High Court and applied to strike out the charge. MTN contended that:

  • the signature on the charge sheet could not be traced or attributed to a legal practitioner authorised to practise law in Nigeria; and
  • the first defendant, as described in the charge, was not a juristic person, thereby depriving the Court of jurisdiction.

MTN therefore sought an order striking out Charge No. FHC/ABJ/CR/111/2024 as incurably defective and incapable of activating the Court’s jurisdiction.

IV. SUBSEQUENT PROCEEDINGS

The matter was initially fixed for the arraignment of the defendants. However, several defendants failed to appear, and the proceedings were adjourned.

While the prosecution was pending, the Office of the Attorney General of the Federation (AGF) applied to take over and review the case following a petition submitted on behalf of MTN Nigeria Communications Limited and some of its officials. The Federal High Court granted the application, and the matter was adjourned to enable the Attorney General to complete the review.

Following the review, counsel for the Attorney General informed the Court that the prosecution was withdrawing the charges against:

  • MTN Nigeria Communications Limited;
  • Karl Olutokun Toriola; and
  • Nkeakam Abhulimen.

The Attorney General further informed the Court that Fun Mobile Limited and Yahaya Maibe would take their pleas under an amended charge. Justice Umar Mohammed subsequently struck out the names of MTN Nigeria Communications Limited, Karl Olutokun Toriola, and Nkeakam Abhulimen from the proceedings.

V. OUTCOME

The Federal High Court struck out the names of:

  • MTN Nigeria Communications Limited;
  • Karl Olutokun Toriola; and
  • Nkeakam Abhulimen,

after the Attorney General of the Federation withdrew the criminal charges against them following a legal review.

The criminal proceedings were not terminated in their entirety. The prosecution continued against Fun Mobile Limited and Yahaya Maibe under an amended charge.

VI. SIGNIFICANCE

This case illustrates the Nigerian Copyright Commission’s use of criminal proceedings to enforce copyright in musical works and sound recordings, particularly in relation to the commercial exploitation of Caller Ring Back Tunes (CRBTs). It also demonstrates the Attorney General of the Federation’s constitutional authority to take over and review criminal proceedings instituted by a federal agency. Following that review, the Attorney General withdrew the charges against MTN Nigeria Communications Limited and two of its officials, while the prosecution continued against the remaining defendants under an amended charge.

VII. CASE STATUS

Status: Charges withdrawn against MTN Nigeria Communications Limited, Karl Olutokun Toriola, and Nkeakam Abhulimen. Criminal proceedings continued against Fun Mobile Limited and Yahaya Maibe under an amended charge.

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