Masterpiece Investment Ltd. v. Worldwide Business & Ors.
Court: Federal High Court
Suit No.: FHC/L/120/91
Citation: 40 NIPJD [FHC. 1997] 120/1991
Jurisdiction: Nigeria
Judgement delivered by: Justice Odunowo
I. ISSUES FOR DETERMINATION
- Whether the 3rd defendant could be held liable.
- Whether the plaintiffs’ article was eligible for copyright protection.
- Whether the defendants copied the plaintiffs’ work.
- Who was responsible for the copying/publication.
II. SUMMARY OF CASE AND JUDGEMENT
In 1989, the Plaintiffs brought an action against the Defendants for copyright infringement relating to an article published by the Defendants for commercial purposes in the December edition of Business Magazine. The article was similar to a previous article published in Business Magazine in October 1989. The Plaintiffs claimed to have suffered damages in the sum of N1,000,000 damages (N300,000 general damages, N200,000 special damages and N500,000 exemplary or punitive damages).
In awarding damages against the defendant, the court presided by Odunowo J, considered the embarrassment and degradation the Plaintiffs had suffered in the industry, emotional pains and loss of respect from professional colleagues. The sum of N300,000 was awarded as general damages, N200,000.00 for special damages and exemplary damages of N100,000.
“On the claim for exemplary or punitive damages, the trend of both judicial and juristic opinion is that the Court may award additional damages for such matters as the author’s reputation or feeling, the vulgarisation of the work, economic loss, unjust enrichment by the Defendant as a result of the act of infringement, the conduct of the Defendant”…Per Odunowo J.
JUDGMENT: MASTERPIECE INVESTMENT LTD. v. WORLDWIDE BUSINESS
(Delivered by ODUNOWO, J.): The Plaintiffs’ claim against the Defendants jointly and or severally, as endorsed on the Writ of Summons, is for:
- The sum of One Million Naira (N1,000,000.00) representing general, special and exemplary or punitive damages suffered by the Plaintiffs as a result of the Defendants unlawfully copying and or duplicating jointly and or severally, and without the consent or approval of the Plaintiffs, the work of the Plaintiffs contained at page 21 of the October, 1989 edition of Business Magazine and for the publication and circulation of the unlawful article by 1st and 2nd Defendants herein as the work of the Defendants jointly and severally at page 111 of the December, 1989 Edition of the said Business Magazine in favour of the 3rd Defendant.
- An injunction restraining the Defendants jointly and or severally, their Servants, Agents or Privies from further copying and or plagiarising the said work of the Plaintiffs in any form whatsoever. The damages allegedly suffered by the Plaintiffs are particularised as follows:
(i) General Damages – ₦300,000.00
(ii) Special Damages – ₦200,000.00
(iii) Exemplary or Punitive Damages – ₦500,000.00
Total – ₦1,000,000.00
The Defendants denied liability. Pleadings were ordered, filed and exchanged between the parties. The 1st and 2nd Defendants filed a joint Statement of Defence while the 3rd Defendant filed no defence at all even though a Counsel appeared for them up to a certain stage in the present proceedings. Since the case was ripe for hearing five abortive trial dates were fixed i.e. 8/9/92, 14/10/92; 15/2/93; 15/6/93 and 13/10/93, until actual hearing commenced on 17th February, 1994 for lapses which are equally attributable to both parties. We must now recall the evidence adduced through the sole witness called by either side.
Mr. Uche Solomon Oguine, the 2nd Plaintiff, who is an Advertising Practitioner and an Executive Director of the 1st Plaintiff’s Company testified that the 1st Defendant’s Company are the publishers or producers of the Business Magazine while the 2nd Defendant is the publisher. Both Defendants claimed that the published article was given to them by the 3rd Defendant whereas the original was created by the 2nd Plaintiff. Sometime in 1989, one of the Plaintiffs’ clients commissioned them to do a write-up on the image of the Companies known as the Edison Group of Companies, hereinafter simply called “the Edison Group”. The Plaintiffs agreed to publish the article in the Business Magazine. A letter dated 2 February, 1989 authorising the Plaintiffs to carry out the assignment was tendered and admitted without objection as Exhibit A. The Business Magazine gave the Plaintiffs an advertising order form which was duly completed and they were told how much the Plaintiffs would have to pay. A blank Advertising Order Form similar to the one duly completed by the Plaintiffs was left with the Defendants; this was tendered and admitted without objection as Exhibit B. Copy of an Affidavit dated 30 October, 1989 which was sworn by the witness to show that he is the author and owner of the original article in question was admitted as Exhibit C after objection to its admissibility was overruled by me. The said article was published in the October, 1989 edition of Business Magazine at pages 20 and 21 which was admitted in evidence without objection as Exhibit D.
A few months later, the witness’s attention was drawn to a publication in the December, 1989 edition of the Business Magazine at page 111 which was equally admitted in evidence without objection as Exhibit E. The two articles contain a lot of similarities and it was quite obvious that Exhibit E was virtually copied from Exhibit D. The Defendants did not obtain the witness’s permission or approval before publishing the said article. There was no acknowledgement whatsoever of his contribution to the article and no payment was made by the Defendants. On discovering this fact, the witness addressed a letter to the Defendants drawing their attention to this blatant act of plagiarism and sought an explanation from them as evidenced by his letter dated 30 January, 1990 which was admitted without objection as Exhibit F. This was followed by another reminder of 6 June, 1990 which is Exhibit G. When both letters failed to evoke any response from the Defendants, the witness was obliged to address them a third letter dated 11 October, 1990 as represented by Exhibit H. On account of this, Edison Group became dissatisfied with the Plaintiffs who were regarded as incompetent. This led to the termination of the agency agreement between the parties. Original copy of this letter dated 28th September, 1990, was tendered and admitted without objection as Exhibit J. As a result of this development, the Plaintiffs briefed their Counsel who wrote a letter to the Defendants. Copy of Counsel’s letter dated 5 November, 1990 was tendered and admitted without objection as Exhibit K; copies of the two letters written by the Defendants were also tendered and admitted without objection as Exhibits L and M.
The Plaintiffs produce television commercials in the course of their business as well as radio commercials, newspaper and magazine advertisements, bill-board advertisements, public relations and corporate promotion services. They also arrange trade fairs and motor fair exhibitions, including the production of annual corporate calendars, seasonal greeting cards, product and corporate brochures and any other jobs entrusted to them by their clients in any chosen field. Whenever the Edison Group gave the Plaintiffs an assignment, they normally paid for any service rendered. Such payments are usually backed by letter or a note. Three of such letters were tendered and admitted without objection and respectively marked as Exhibits N, O and P. The Plaintiffs normally issue receipts for payments made to them. The original copies are received by the Clients while the Plaintiffs retain the copies; eight of such copies were tendered and admitted without objection as Exhibits Q – Q7.
The Plaintiffs usually charge 10% of the value of any jobs given to them and when such jobs are placed in the media – television, radio, bill-board etc – they are entitled to 15% commission from the media houses. Hence, they normally get 25% of the value of any job handled by them. Apart from revenue from media sources, they also obtain revenue from production services e.g. television, radio or newspaper advertisements. In this case, it is not question of percentage; the charges are not fixed. It depends on the nature of the job undertaken and it could be anything between 10% and 35%; it also depends on the risk involved. The Plaintiffs did a lot of production work for Edison Group e.g. many art-works, one of which is the issue in contention here. The works include two radio and one television commercials and some others which the witness could not easily remember. The Plaintiffs have lost a lot in terms of money but they could not place an exact value on it now but it could be far in excess of One Million Naira (N1,000,000.00). The effect on the Plaintiffs’ image includes the termination of their contract. Some of the Companies that would otherwise have given them jobs have had a rethink over it. If these jobs were to come their way, they would have amounted to a lot of money, which would have yielded a lot of revenue to the Plaintiffs.
In addition, the Plaintiffs lost the account of the subsidiaries of the Edison Group like Danzas Asbestos Ltd., Nanitrade Enterprises Ltd and Agriculture and Equipments Co. Ltd. The Plaintiffs are claiming punitive damages because they have suffered embarrassment and even degradation in the industry, quite apart from emotional pains arising from it and loss of respect from professional colleagues. The material that was published for the 3rd Defendant attracted a remuneration of N30,000 paid by them to the 1st and 2nd Defendants. The Plaintiffs are claiming that money rightly belongs to them since the material for which that payment was made was extensively copied from their original creation. The Plaintiffs therefore want this Court to grant all the claims against the Defendants and also restrain the three Defendants from further publication and use of the said material.
Cross-examined by Mr. C. Idigo, the witness explained that his grouse against the 3rd Defendant is that the advertisement taken out by them are similar to the one which the witness took out on behalf of his own client, i.e. that Exhibits D and E are similar and the contents of the Defendants’ advertisement were in most parts copied from the Plaintiffs’. He is an Advertising Practitioner. You can use an Advertising Practitioner or an Advertising Agency or you can deal directly with the media house – Newspaper, Magazine, Radio – as the case may be. It depends on the agreement between the parties. There is no fixed rule.
The witness has evidence that the three Defendants worked together to produce Exhibit E. When the Plaintiffs contacted the 1st and 2nd Defendants and complained to them that the advertisement published in their magazine of December, 1989 was copied from the Plaintiffs’ own advertisement, the Defendants replied that the material they published was given to them by the 3rd Defendant. So from that information, the witness believes that the three Defendants know how they copied from the Plaintiffs’ own advertisement. Based on that information, the Plaintiffs’ lawyer wrote the letter dated 1 February, 1991 which is Exhibit R to which the 3rd Defendant sent a reply as contained in Exhibit S. Exhibit C is an Affidavit sworn by the witness to show that he is the original creator of the work; it is his usual practice to swear to an Affidavit concerning any original creative work. He submitted Exhibit D directly to the 1st and 2nd Defendants. If one does not come in contact with the advertisement (Exhibit D), one would not know what it contains.
Re-examined by Mr. Nwobbi, the witness told the Court that he has sued the 3rd Defendant because (1) The whole material on the advertisement is for the benefit of the 3rd Defendant and (2) The allegation by 1st and 2nd Defendants that the material was passed on to them by the 3rd Defendant. Apart from these two reasons, the witness assumes that between the three of them they know who did what. That concluded the formal evidence adduced on behalf of the Plaintiffs. The case was then adjourned for the defence.
None of the Defendants gave evidence, apart from a witness who was invited on behalf of the 3rd Defendant. He is Mr. Chuks Okeke, a Legal Practitioner who was called to the bar in 1986. He does not know the Plaintiffs and he has never come across either of them before. But he knows the 1st Defendant’s Company although he had not personally met the 2nd Defendant. Sometime in October 1989, the 1st Defendant and its agents approached his own Company (3rd Defendant) and intimated him that they planned to run a supplement on all major Companies in the country. How the 3rd Defendant is the Company’s witness was not explained. Be that as it may, they interviewed the Chairman of the 3rd Defendant at the time, the Late Chief M.N. Ugochukwu, as well as some other key members of the Company. They further requested payment of ₦30,000 for publication of an advertisement on the Company and its operations. The payment was made and a publication to that effect was made in the December Edition 1989 of their Magazine.
The witness does not know the particular person who wrote the advertorial but it was not written by any member of his staff. He subsequently saw the advertorial written on his behalf; the witness identified the particular publication as contained in Exhibit E. Prior to that publication, he was not familiar with the magazine and he was “not buying it religiously”, to use his exact words. After the publication of the advertorial, the Solicitors of the 1st Plaintiff’s Company wrote and informed the witness that the advertorial executed on his Company (3rd Defendant) was a plagiarised version of the 1st Plaintiff’s work. He therefore wrote the 2nd Defendant intimating them about this development. He identified the two letters exchanged between the parties i.e. Exhibits R and S. The 1st Defendant’s Company wrote back apologising for putting the witness’s Company in this mess. The witness identified the said letter as Exhibit T. Prior to that time, the witness had never seen the advertorial on Edison Group. Neither the 1st nor 2nd Defendant gave him a copy of the advertorial for review before publication. The witness joined the 3rd Defendant Company in 1989.
Cross-examined by Mr. Nwobbi, the witness told the Court that he was approached by some staff of the 3rd Defendant’s Company. He could not say when but it was during the month of October, 1989. Exhibit E was for the benefit of his Company. His instruction to their lawyer was to prosecute the Defendants’ case and he knows how best to do it. At the end of this re-examination, Mr. Idigo expressed his desire to close the case for the 3rd Defendant and the suit was then adjourned for address.
In his own address, Mr. Idigo pointed out that the case for the Plaintiff,s is as contained in paragraph 14 of the Statement of Claim. Both the 1st and 2nd Defendants started the trial with all the parties but midway, they abandoned the case for no reason. Hence, Mr. Idigo is of the opinion that there are four issues for determination in this case and he went on to elaborate his argument consecutively.
The first question is whether the article is a descriptive article that should enjoy Copyright protection. He submitted that both advertorials in Exhibits D and E should not enjoy Copyright protection because the format and language used is a generic form normally used in advertising and the facts stated therein are true for each Company. The similarities, if any, are mere coincidences in the use of English Language. In considering whether it is the Plaintiffs’ original work, one has to consider whether the English words used therein cannot be used by another person, and if used by another person whether it would affect his income. He submitted that the words used there can be used by another person and when so used, cannot affect the Plaintiffs’ income.
Secondly, it must be determined if the words were copied and who actually did the copying. Both in Exhibit S and in the evidence given on their behalf, the 3rd Defendant denied being the author of Exhibit E; both the 1st and 2nd Defendants never denied this allegation. It would seem that Exhibit E was lifted from Exhibit D. However, Mr. Idigo submitted that there are subtle but important differences in both advertorials.
As regards the third issue of who is responsible for the present action, he submitted that the answer lies between the 1st and 2nd Defendants. The evidence before the Court is that the 1st and 2nd Defendants approached the 3rd Defendant and requested for facts on the Company which they proposed to use in the computation of the best 500 Companies in Nigeria for which services they paid in the sum of ₦30,000. So that his clients did not go out on their own to place advertisement with them. The Plaintiff, who is an expert in the field of advertisement, testified before the Court that the practice when you take an advertisement in a newspaper is that you will be given an advertising form such as Exhibit B. Mr. Idigo submitted that there is no evidence before the Court that this order form was given to the 3rd Defendant. Which strengthens their story to show that they were approached by the 1st and 2nd Defendants. His clients only became aware of the existence of Exhibit D when a letter was written to them by the Plaintiffs. Careful perusal of Exhibit E would reveal that the 3rd Defendant could not have written the article having regard to the phrases – “the Company” and “their Company” – adopted in the said article. In a situation like the present case where there is no name attached to an article i.e. where the identity of the author is in doubt, the author would be identified from the evidence before the Court. However, if it is still difficult to do so, the printer, editor, publisher and the Company shall equally be liable. He therefore urged me to hold that the 1st and 2nd Defendants are liable.
On the fourth issue, he submitted that the 3rd Defendant cannot be liable because they are innocent victims of the whole transaction; the advertisement was placed in their name and it is assumed that they are to “benefit” from the said advertisement. They are innocent because they were not aware of the existence of Exhibit D and they were approached by a supposedly reputable Company which was ostensibly doing research on the best 500 Companies in Nigeria. The 3rd Defendant cannot also be held vicariously liable because the people that are to gain from the whole transaction and did in fact gain from the transaction and there is no master-and-servant relationship between the 1st and 2nd Defendants on the one hand and the 3rd Defendant on the other, by taking the sum of ₦30,000. What the 1st and 2nd Defendants set out to do is essentially what is supposed to come out as a result of their research work on Companies in Nigeria for them to pick the best 500. Which was not what they did. The answer must be so because the 3rd Defendant only supplied the 1st and 2nd Defendants facts about the 3rd Defendant’s Company. It is left to the 1st and 2nd Defendants to put these facts in a readable form before the public. They were never instructed to copy Exhibit D. If the Court is of the view that the 3rd Defendant did infringe the Plaintiffs Copyright, which is denied, he submitted that they are innocent infringers and should be granted exemption from liability to pay damages.
As regards non-defence by the 1st and 2nd Defendants, the law is that any allegation of fact in a Statement of Claim which is not denied expressly by the Defence is deemed expressly admitted. I was referred to the case of Pheobus Economides v. S. Thomopolos & Co. Ltd. (1956) 1 F.S.C. 7. Since the 1st and 2nd Defendants never denied the allegations in his client’s defence, they have indirectly admitted the case of the 3rd Defendant. It is true they filed a Statement of Defence but pleadings cannot constitute evidence: Hutchful v. Biney (1971) 1 ALL N.L.R. 271 and U.D.C. v. Ladipo (1971) ALL N.L.R. 14. A Defendant who does not give evidence in support of his pleadings or in challenge of the evidence in Court is deemed to have accepted the facts adduced in Court: Imana v. Robinson (1979) 3 – 4 S.C. 1.
In considering the damages to be awarded, if the Court considers the 3rd Defendant liable in anyway, the Court will look at the relative popularity of the product or advertisement. There should be no damages when there is no sufficient evidence before the Court for the award of damages and terms such as special and general should be avoided. Reliance is placed on the case of Chanrai v. Khawam (1965) 1 ALL N.L.R. 185. Mr. Idigo urged me to hold that nothing has been proved against the 3rd Defendant and as such, they cannot be held liable. Consequently, the case against them should be dismissed.
As perceived by Mr. Nwobbi, the first issue is this: since the Plaintiffs’ action is for damages for breach of Copyright which is actionable as a breach of statutory duty, and I was referred to Section 17 of the Copyright Act No. 47 of 1988, the question which the Court has to determine is whether or not Copyright exists in Exhibit D or whether this particular work is entitled to Copyright protection. The answer to this enquiry lies in Section 1(2)(a) of the Act. Within the context of that Section, he submitted that Exhibit D is eligible for Copyright because it comes within the definition of literary works as contained under Section 39 of the Act. That is why Copyright has been described as the protection of intellectual property: Macmillan & Co. Ltd. v. Cooper K & J (1923) 40 TLR 166 at Page 190 and Francis Day & Hunter v. Bron (1963) Ch. 587. The Plaintiffs have gone ahead to stamp their authority on Exhibit D by deposing to an Affidavit in terms of Section 34 of the Act as represented by Exhibit C. Based on Section 34(2) the Court must presume that the statements made therein are true so long as the contrary has not been proved by the Defendant. He submitted that Copyright in Exhibit D vests in the Plaintiffs and the reason for this is that the work has been commissioned by Edison Group which is one of their customers.
Secondly, I was referred to Section 5 of the Act dealing with the general nature of Copyright and once again to Section 39 which is the Interpretation Section. He submitted that Exhibit E is undoubtedly an adaptation or modification of Exhibit D. The 1st and 2nd Defendants have not denied this. They have only said they published what the 3rd Defendant gave them. Mr. Nwobbi submitted that the 1st Defendant is vicariously liable for the infringement in the course of employment of its staff. Moreover, the 1st and 2nd Defendants, since filing their defence, have failed to appear before this Court after their last appearance on 17th February, 1994 when actual trial commenced. They have taken no further steps to defend the action. He submitted that in the face of the uncontradicted evidence of PW1, this Court is bound to give judgment in favour of the Plaintiffs. The onus on the 1st and 2nd Defendants remains undischarged as they have adduced no evidence in support of their Statement of Defence. Reliance is placed on Section 134 of the Evidence Act in addition to these two cases: (1) Muraino Elemo v. Fasasi Omolade (1968) NMLR 399 and (2) Plateau Publishing Co. Ltd. v. Chuks Adophy (1986) NWLR (Part 36) 265.
Exhibit E does not fall within the exceptions as provided by the Copyright Act 1988, as amended. Furthermore, Exhibit B has not been tendered either by the 1st and 2nd Defendants or by the 3rd Defendant, and therefore we are not in a position to know whether the 3rd Defendant gave the document to the 1st and 2nd Defendants. What is known is that the approval of the Plaintiffs was neither sought nor obtained. I was referred to Essays on Copyright Law and Administration in Nigeria by Professor E.E. Uvieghara at pages 78 at 79.
On the issue of damages, he contended that the 1st and 2nd Defendants as publishers, are in a position where they owe the authors a duty of care. This duty can only be breached in case of gross negligence as in the instant case. The Plaintiffs have not only established ownership of the Copyright in Exhibit D but they have also established infringement by the Defendants and that this infringement was due to negligence or recklessness on their part. Consequently, the Plaintiffs are entitled to the injunction sought and the damages claimed in accordance with the provisions of Order XXXIX Rule 3 of the Federal High Court (Civil Procedure) Rules 1976 since they have not appeared and they have neglected to put in any defence.
He submitted that the remedy of the 3rd Defendant lies in an action against the 1st and 2nd Defendants who have already admitted that they are innocent victims. Their position is the same as that of the 1st and 2nd Defendants by virtue of the law. In any case, they have not sought that remedy before this Court. Instead, they have gone before Sotuminu, J. of the High Court of Lagos to seek the same remedy which they should have sought here. In conclusion, Mr. Nwobbi urged me to grant the damages as claimed and make the consequential order of injunction against the Defendants.
In a brief reply, Mr. Idigo observed that the issue of indemnifying them could only arise if the Court finds the 3rd Defendant liable, they are not aware of Exhibit D. There can be no question of acquiescence because immediately they became aware of the true position, the 3rd Defendant reacted. He submitted that the Court can suo motu compensate the 3rd Defendant for their legal expenses in this Court since they are only here because of the action of the 1st and 2nd Defendants. As compensation, he would ask for ₦100,000 on behalf of the 3rd Defendant. Finally, Mr. Idigo urged me to dismiss the claim against his clients.
Those are the bare facts and arguments as presented by both sides. It is now incumbent on this Court to make an appraisal of both the evidence and the applicable law as canvassed by both learned Counsel. Before dealing with the question of liability, it is desirable to determine if the article in question is entitled to Copyright protection. There is no doubt in my mind that the said article is a literary work which is eligible for Copyright under Section 1 of the Copyright Act 1988, as amended in 1992. The uncontradicted evidence adduced before me is that the original article which is in permanent form as represented by the sworn Affidavit, Exhibit C, of the 2nd Plaintiff shows that sufficient effort has been put into the work to give it its original character. Consequently, within the purview of the Copyright Law, Exhibit D clearly enjoys Copyright protection and the ownership in this work vest in the Plaintiffs, particularly as the statutory presumption to this effect by virtue of Exhibit C has not been rebutted as stipulated under Section 34(2) of the Copyright Act 1988, as amended in 1992.
The next issue to be determined is whether there was an infringement. To enable us determine this element, we must compare the original work in Exhibit D with the subsequent plagiarised version of the Defendants which is recorded in Exhibit E. Careful comparison of both publications show that they are essentially the same. In fact, the introduction and conclusion in Exhibit D are virtually the same as published in Exhibit E for ease of reference, I will respectively quote both sub titles as composed in Exhibits D and E:
“INTRODUCTION”
Edison Group was founded in 1983 on a sound, enduring corporate platform – with a mission to contribute in as many ways as possible, to the country’s economic and industrial development”.
“Introduction”
Ugochukwu and Sons Limited was incorporated on August 9, 1995, on a sound and enduring corporate platform, with a mission to contribute in as many ways as possible, to the country’s economic and industrial development”.
“CONCLUSION”
Our experience has given us more confidence in the economy. We have taken a position and we shall continue to forge ahead, contributing in as many ways as possible, until the realisation of a full industrial state”.
“Conclusion”
Their experience have (sic) given them more confidence in the economy. They have taken a position and shall continue to forge ahead, contributing in as many ways as possible, until they achieve world industrial fame”.
Detailed analysis of both publications reveals the following facts: Apart from the fact that the subtitles in Exhibit E are written in small letters as opposed to capital letters used in Exhibit D, twenty-seven (27) out of the words used in the Defendants’ introduction are the exact words used by the Plaintiffs in their own introduction containing thirty (30) words in all. Which gives a result of 90% copying. And as far as the conclusion is concerned, the wordings in both Exhibits are exactly the same, the only minor difference being the use of pronouns. Consequently, the suggestion by Mr. Idigo that the similarities in the words adopted are mere coincidence does not sound credible or convincing. Hence, I am fully satisfied that the Plaintiffs’ work has been infringed.
As to who is responsible as between the three Defendants, we must endeavour to analyse the evidence against the background of the Defendants’ conduct. It is no defence to pass the buck by saying that one Defendant gave the article to the other as the Defendants alleged that they were provided the impugned publication, Exhibit E, by the 3rd Defendant whereas the latter was quite insistent that the 1st and 2nd Defendants were the real culprits. Be that as it may, I am persuaded that the 1st and 2nd Defendants are liable because they have offered no evidence in rebuttal of the uncontradicted evidence placed before the Court by the Plaintiffs and I have been unable to conceive of any reason why such evidence should not be taken as true. Although the two Defendants filed a joint Statement of Defence, nevertheless, it is trite learning that a Defendant who does not give any evidence in support of his pleadings must be taken to have abandoned the averments therein. Moreover, pleadings do not constitute evidence. Since the two Defendants did not give evidence in support of their pleadings or in challenge of the evidence of the Plaintiffs, they must be deemed to have accepted the facts adduced by the Plaintiffs. See F.C.D.A. v. Niabi (1990) 3 NWLR (Part 138) 270, a decision of the Supreme Court. That is not all. The Plaintiffs addressed three letters Exhibits F, G and H, to the Defendants which failed to evoke any response from them.
It was only after they received a letter from the Plaintiffs’ Solicitors that they eventually reacted by proposing “a meeting at our office between your firm, your client and us, to resolve our misunderstandings” as contained in Exhibit L which is dated 26th November, 1990. Perhaps, I should point out in parenthesis that nothing came out of that proposed meeting which never took place.
Furthermore, paragraphs 2 to 5 of a letter dated 6 February, 1991, Exhibit S, which was addressed to the 1st Defendant by the 3rd Defendant clearly debunks the suggestion that the 1st and 2nd Defendants are not liable for the infringement and I quote:
“You will recall that your Company approached our Late Chairman sometime in November, 1989 over corporate supplements (sic) to be placed in your December, 1989 Edition. We agree on the fees and you had a brief interview with our Late Chairman and later took some photographs. You were issued with your cheque and that was the last we heard of you until the supplement of (sic) was published in the December Edition of your magazine.
It is really sad that instead of tendering an Apology to the owners of the work you plagiarised in the most glaring sense, you went and hid under the cover that the work was ours, knowing fully well that the write up was done by your magazine. You have no doubt, descended into a state of stupor, so profound that you cannot visualise anything decent.
Plagiarism is a habit that suits only the empty headed. It does not only cheapen a person but also reduces his credibility. It is a deplorable habit and it is a big shame to your magazine. This incident has exposed your magazine crew as a bunch of lazy journalists (sic) who cannot do the job they are paid handsomely to do.
Further, for your own interest, you are hereby advised to get in touch with the parties concerned with a view to settling this matter as it is not to your interest that it is heard in open Court. We must further make it absolutely clear that in the event of our being dragged to Court as co-defenders – that we would most definitely file a counter-claim against your Company. We are further endorsing a copy of this letter to Messrs. Ihejeto, Nwobbi & Co. for obvious reasons”.
It will be observed that Exhibit S was addressed to the 1st Defendant over six years ago. The Plaintiffs did not come to Court until 14 October, 1991. Despite the denunciatory tone of that letter, neither the 1st nor the 2nd Defendant deemed it appropriate to react to it in any way whatsoever. Such an attitude constitutes clear evidence of callous indifference. Added to this is the fact that up till today, both Defendants have offered no evidence that could be considered alongside the account of events put forward by the Plaintiffs. Consequently, I have no iota of doubt in my own mind that the liability of both Defendants have been amply established. Perhaps, it is more accurate to say that there is no alternative evidence to the one adduced by the Plaintiffs.
The 3rd Defendant called a witness to show that they are entirely innocent of the whole transaction. Although they did not file any Statement of Defence or give evidence on their own behalf, there is abundant evidence on record as provided by the Plaintiffs that the 3rd Defendant could possibly be innocent. First, they are not the primary infringer because they paid the not inconsiderable sum of N30,000 for the publication by the 1st Defendant.
Secondly, having regard to Exhibit S – excerpts of which have been reproduced above, it is quite possible that the claim of innocence on their part is well founded. This belief is strengthened by the fact that they never had the intention of violating the Plaintiffs’ Copyright in any way because they really addressed their mind to the possible consequences of the 1st Defendant’s action. Furthermore, their claim to innocence is buttressed by the fact that they copied their letter, Exhibit S, to the Plaintiffs’ Counsel which they were not obliged to do. As this is a civil case, the standard of proof required of the 3rd Defendant is not too exacting in that all they need to show is that their explanation is probably true. Based on this normal civil standard, I am satisfied that they have successfully discharged the burden of proof which devolves on them having regard to the views expressed in Exhibit S which was tendered at the instance of the Plaintiffs and to which reference has already been amply made above. Consequently, I find the 3rd Defendant not liable at all for the act of infringement in this case. For the reasons earlier given above, the Plaintiffs’ claim succeeds as against the 1st and 2nd Defendants.
The only outstanding issue for consideration is the measure of damages. In so far as special damages go, the Plaintiffs have satisfactorily established their right to this head of claim i.e. N200,000 and I so hold. As regards the claim for general damages, these losses which flow naturally from the Defendants’ conduct and its quantum need not be pleaded or proved as it is generally presumed by law, unlike special damages which can be precisely calculated. Therefore, evidence which will assist the Court must be given if the Plaintiff is to obtain substantial damages on this general head of claim. See U.B.N. Ltd. v. Odusote Bookstores Ltd. (1996) NWLR (part 421) 588, a decision of the Supreme Court. In this case, the Plaintiffs gave evidence of how their valuable contracts with the Edison Group of Companies were terminated, a loss which could be far in excess of N1,000,000, quite apart from loss of prestige and credibility. Taking all these factors into account as well as the attitude of virtual indifference adopted by the 1st and 2nd Defendants since the inception of this suit, I see no reason why I should not endorse the entire amount claimed by them under this general head. Consequently, the Plaintiffs are hereby awarded the sum of N300,000 as general damages.
On the claim for exemplary or punitive damages, the trend of both judicial and juristic opinion is that the Court may award additional damages for such matters as the author’s reputation or feeling, the vulgarisation of the work, economic loss, unjust enrichment by the Defendant as a result of the act of infringement, the conduct of the Defendant, the means of the parties etc., nonetheless the amount to be awarded must not be excessive. See generally The Modern Law of Copyright and Designs by Laddie, Prescott and Vittoria (2nd Edition) at pages 926 to 929. The only qualification is that the discretion vested in the Court in this regard must, as usual, be exercised both judicially and judiciously in the interest of justice. Based on the foregoing criteria, the Plaintiffs have established their right to an additional award under this third head which taking into consideration, the facts and circumstances of this case, I have assessed at N100,000. Which brings the total amount of damages to N600,000 in addition to the order of injunction sought and which is hereby granted. That will be the judgment of this Court.
III. REASONING
- The court emphasised the importance of protecting creative works from unauthorised duplication.
- While certain descriptive works may not qualify for copyright, the plaintiffs’ article contained original expression that attracted copyright protection.
- The conduct of the defendants, especially the 1st and 2nd, in reproducing the work without permission and profiting from it, justified punitive damages.
- Damages were apportioned considering loss of revenue, harm to professional reputation, and termination of business relationships resulting from the infringement.
IV. COURT’S DECISION
- The court found strong similarities between Exhibits D and E, indicating that Exhibit E was copied from the plaintiffs’ work.
- The evidence showed the 1st and 2nd defendants approached the 3rd defendant, obtained company information, and arranged the advertorial that was published in Business Magazine for the 3rd defendant’s benefit.
- The 3rd defendant’s claim of being unaware of the copying was not fully persuasive, but their role was considered in assessing liability.
V. ORDERS/DAMAGES AWARDED
- General damages: ₦300,000
- Special damages: ₦200,000
- Exemplary / punitive damages: ₦500,000
- Total: ₦1,000,000
- Injunction restraining defendants from further copying or plagiarising plaintiffs’ work.
IV. OTHER CITATIONS
- (1990-1997) 3 IPLR 346
- (1997) FHCLR 496
