Nigerian Copyright Commission v. Dominion Kalu
Charge No.: FHC/ABJ/CR/12/2012
Date: Delivered on March 28, 2012
Judge: Justice Adamu Bello
Court: Federal High Court, Abuja
Citation: 55 NIPJD (FHC. 2012) ABJ/CR/12/2012
Appearances: A.T. Kohol Esq., DPP, with S. Dimowo Esq. and J.I. Ogbonna Esq. for the Prosecution.
Charge: Sale and Possession of Local and Foreign Musical and Cinematograph Films
Case Summary
In Nigerian Copyright Commission (NCC) v. Dominion Kalu, the NCC brought charges against a woman named Dominion Kalu. The original action was for a two-count charge relating to the possession and sale of infringing copies of CDs and DVDs. These actions are contrary to Section 20(2)(c) of the Copyright Act, Cap C28, Laws of the Federation of Nigeria, 2004. The initial charges were filed on January 31, 2012, but were struck out and replaced with an amended charge filed on March 27, 2012.
“Court: The initial charge brought against the Accused Person which was filed on 31/1/2012 is struck out while the amended charge should now be read to the Accused Person for her plea.”
Upon arraignment before the Federal High Court in Abuja, the accused pleaded guilty to Count 1 and not guilty to Count 2. The prosecution, led, withdrew Count 2, which the court granted, and discharged the accused on that count.
“Accused: I understand the charge read over and explained to me
Accused: I plead guilty to Count 1.
Accused: I plead not guilty to Count 2.”
In terms of evidence, the prosecution tendered the following:
- The cautionary statement of the accused.
- An inventory list of the seized infringing CDs and DVDs. There were 502 copies in total.
- The physical CDs and DVDs.
The accused admitted to selling the infringing CDs and DVDs but she also explained to the court that she started the business after losing her husband to provide for her two children. She begged the court for leniency and promised not to re-offend.
“Convict: I am a widow, I started this illegal business when I lost my husband. I do not have any other thing doing except selling the CD’s to cater for my children. And since this happened I have not been able to cope with school fees and the house rent. I have two kids and I am the only one to take care of them. I promise I will not engage in the selling of the CDs again. I please for forgiveness.”
Key Legal Principles
- Under Section 20(2)(c) of the Copyright Act, possession of infringing copies for purposes other than private use constitutes an offence punishable by a fine of ₦100 per infringing copy or imprisonment.
- This case is a reminder that the courts in Nigeria have the discretion to impose a reduced fine or alternative sentence in consideration of mitigating circumstances.
- Some mitigating circumstances can include whether or not the accused is a first-offender, personal hardship, and also the likelihood to commit the crime again and the potential for reform.
Issues for Determination
- Whether the accused’s guilty plea to Count 1, supported by the prosecution’s evidence, was sufficient for a conviction.
- Whether mitigating factors justified a reduced sentence.
- Whether the infringing items should be forfeited for destruction under Section 20(5) of the Copyright Act.
Judgement
- The court found Dominion Kalu guilty on Count 1 based on her guilty plea and corroborating evidence.
“Court: Since you please guilty to the 1st count in the charge after it was read over and explained to you in open Court and I am quite satisfied that you did so after you understood the charge and the effect of your plea and in view of the additional evidence tendered and received by the Court supporting, the charge, I now find you guilty of the offence and convict you accordingly.”
- The court considered her status as a first offender, her personal circumstances as a widow and sole caregiver, and her promise not to re-offend.
- She was sentenced to six (6) months imprisonment with an option of a ₦20,000 fine.
“Court: SENTENCE
I have considered the plea made by the Convict for leniency and the fact that she is a first offender. I have also considered her situation of being a widow with some children to look after and I am almost tempted to say go home and sin no more but for the law which stipulates that a sentence must be imposed. From the tone of the Learned Prosecutor, it is obvious that he too, is indirectly making a plea on behalf of the Convict.
I am persuaded by the proposition of the law that one of the attributes of sentencing is to reform the Convict and not to destroy him. I am therefore prepared to give the convict a liberal sentence based especially on her promise not to engage in the crime for which she was found guilty and convicted. I sentence her [to] 6 months imprisonment with an option to pay a find of ₦20,000:00.”— Justice A. Bello
- The court ordered the forfeiture and destruction of the 502 infringing CDs and DVDs.
“Pros: I apply under section 20(5) of the Copyright Act for the release of the copies of the infringing material exhibit 3 for destruction by the Complainant.
Court: The 502 copies of the infringing materials recovered from the Convict are confiscated and forfeited tot he Complainant. The recovered items marked exhibit 3 are to be released to the Complainant for destruction accordingly.”
