Musical Copyright Society Nigeria v. Copyright Society of Nigeria & 2 Others

Law Cases and Principles

Musical Copyright Society Nigeria (Ltd/Gte) v. Copyright Society of Nigeria (Ltd/Gte) & 2 Others

In the Federal High Court of Nigeria
Delivered on: March 25, 2020
Citation: 53 NIPJD [FHC. 2020] 274/2010
Suit No.: FHC/L/CS/274/2010
Jurisdiction: Nigeria

Delivered by: Honourable Justice Saliu Saidu

BETWEEN

  1. Musical Copyright Society of Nigeria (Ltd/Gte)
    — Applicant

AND

  1. Copyright Society of Nigeria (Ltd/Gte) (Joined By Order of the Hon. Justice Anka dated February 28, 2017)
  2. Corporate Affairs Commission
  3. Attorney-General of the Federation
    — Defendants

Appearances: Wale Adesokan, SAN with him, James Ujah, Esq. for the Applicant; Daniel Ozoma, Esq. with him, C. C. Uruakpa, Esq. for the 1st Defendant.

A. Background

Prior to this action, the Corporate Affairs Commission (CAC) reserved the name “Copyright Society of Nigeria Ltd/Gte” for members of the Plaintiff (MCSN). While that reservation remained valid, the Performing and Mechanical Rights Society (PMRS) applied to change its name to Copyright Society of Nigeria Ltd/Gte (COSON). MCSN challenged the approval, contending that the change violated the Companies and Allied Matters Act (CAMA) and was likely to mislead the public.

B. Case Summary

The Applicant challenged the approval granted by the Corporate Affairs Commission (CAC) allowing the Performing and Mechanical Rights Society (PMRS) to change its name to Copyright Society of Nigeria Ltd/Gte (COSON).

The Applicant argued that it had earlier reserved the name “Copyright Society of Nigeria” and that the approval granted to the 1st Defendant violated the Companies and Allied Matters Act (CAMA), the Constitution, and CAC’s own procedures. It also contended that the use of the name was misleading and likely to deceive the public because of its similarity to the Applicant’s name.

The CAC and the Attorney-General were accused of acting unlawfully in approving the name change while petitions challenging the change were still pending.

The 1st Defendant raised a preliminary objection, arguing that:

  • the Applicant lacked locus standi because it was not an approved collecting society under the Copyright Act;
  • the action was statute-barred; and
  • the claims against the CAC and Attorney-General were also barred by limitation statutes.

Key Legal Issues

  1. Whether the preliminary objection was properly before the Court.
  2. Whether the Applicant had locus standi to institute the action.
  3. Whether the suit was statute-barred.
  4. Whether CAC acted unlawfully by approving the change of PMRS’s name to Copyright Society of Nigeria Ltd/Gte while the Applicant’s reservation remained valid.
  5. Whether an organization restricted to administering musical copyright could lawfully use the generic name “Copyright Society of Nigeria.”
  6. Whether the similarity between the parties’ names was likely to deceive or confuse the public.

What Was Held

The Court held that:

  • The preliminary objection was competent and properly brought before the Court.
  • The Applicant had locus standi to institute the action notwithstanding that it was not an approved collecting society, relying on recent Supreme Court authorities recognizing that an owner, assignee, or exclusive licensee of copyright may sue.
  • The suit was not statute-barred because it was commenced by an Originating Summons seeking declarations rather than judicial review, making the three-month limitation period inapplicable.
  • The Applicant’s reservation of the name “Copyright Society of Nigeria” remained valid during the statutory reservation period provided under section 32 of CAMA, and CAC ought not to have approved a substantially similar name during that period.
  • “Copyright Society of Nigeria” and “Copyright Society of Nigeria Ltd/Gte” were sufficiently similar to create confusion and mislead members of the public.
  • CAC improperly exercised its discretion by approving the 1st Defendant’s change of name before the Applicant’s reservation expired.
  • An organization whose activities are limited to musical copyright should not be permitted to use the broader name “Copyright Society of Nigeria” because the name suggests authority over all categories of copyright.
  • The Court held that it was improper to approve the name “Copyright Society of Nigeria Ltd/Gte” for the 1st Defendant while the Plaintiff’s reservation of the same name had not expired.

Outcome

The Federal High Court granted the Applicant’s claims and ordered that:

  • CAC acted improperly and illegally in approving PMRS’s change of name to Copyright Society of Nigeria Ltd/Gte while the Applicant’s reservation remained in force.
  • The Attorney-General of the Federation and CAC improperly approved the name change despite the Applicant’s pending petitions.
  • An organization limited to musical copyright rights could not lawfully use the name “Copyright Society of Nigeria.”
  • CAC and the Attorney-General, together with their servants and agents, were restrained from approving or recognizing the 1st Defendant as Copyright Society of Nigeria Ltd/Gte.
  • The 1st Defendant and its officers were restrained from using or continuing to use the name Copyright Society of Nigeria Ltd/Gte.
  • CAC and the Attorney-General were directed to take the necessary steps to cancel, alter, rescind, or otherwise reverse the registration or change of the 1st Defendant’s name.

Key Authorities Cited

Significance

This decision is significant because it:

  • Clarifies the legal effect of a reserved company name under the Companies and Allied Matters Act.
  • Confirms that the Corporate Affairs Commission cannot approve a substantially identical company name while an earlier reservation remains valid.
  • Recognizes that an entity restricted to administering musical copyright should not adopt a name implying authority over all categories of copyright in Nigeria.
  • Reinforces the importance of avoiding misleading or deceptive corporate names where confusion is likely.
  • Is one of the leading Federal High Court decisions concerning the regulation of copyright collecting societies and corporate identity in Nigeria.

C. Full Judgement

The Plaintiff filed an Amended Originating Summons dated the 6th of March, 2017, praying this Court to determine the following questions;

  1. Whether the Corporate Affairs Commission (CAC) having held as far back as 1984 that “Copyright Society of Nigeria Ltd/Gte” (COSON) was generic and too broad to be incorporated as such by a private or sectional organization, could legally and justifiably permit the now defunct

Performing and Mechanical Rights Society (PRMS) to change its name to that same Copyright Society of Nigeria Ltd/Gte without being guilty of partiality, discrimination and arbitrariness in the performance of its duties in the incorporation of companies, organizations and legal entities as well as in its treatment of citizens of the Federal Republic of Nigeria, contrary to the clear provisions of the Constitution of the Federation Republic of Nigeria, 1999 and the Companies and Allied Matters Act, 1990, as amended.

  1. Whether the Corporate Affairs Commission (CAC) acted improperly and illegally in approving an application by the defunct Performing and Mechanical Rights Society (PMRS) to process the change of its name from Performing and Mechanical Rights Society (PMRS) to the 1st Defendant – Copyright Society of Nigeria Ltd/Gte (COSON) at a time when the same Corporate Commission (CAC) had reserved the very same Copyright Society of Nigeria Ltd/Gte for use by some members of the Plaintiff for themselves and on behalf of the Plaintiff.
  2. Whether the Honourable Attorney-General of the Federation and/or the Corporate Affairs Commission acted properly and legally in granting approvals to the now defunct Performing and Mechanical Rights Society (PMRS) to process the change of its name to the 1st Defendant – Copyright Society of Nigeria Ltd/Gte. (COSON), having regard to the pendency of the Plaintiff’s respective petitions to them dated November 13, 2009.
  1. Whether 1st Defendant – Copyright Society of Nigeria Ltd/Gte is so identical or similar or so nearly resembling Musical Copyright Society of Nigeria Ltd/Gte as to be likely to deceive or lead persons to conclude that the two entities and their activities are connected and or owned by the same persons or group of persons.
  2. Whether an organization whose genre of copyright is restricted to musical rights could legally be permitted to use the name ‘Copyright Society of Nigeria’ being a term encompassing rights arising from literature, arts, music, drama, cinematography, broadcast, architecture, computer programmes, and so on.

The Plaintiff is also seeking for the following reliefs:

  1. A DECLARATION that the 2nd Defendant herein, the Corporate Affairs Commission (CAC) having held as far back as 1984 that “Copyright Society of Nigeria Ltd/Gte” (COSON) was generic and too broad to be incorporated as such by a private or sectional organization, could not legally and justifiably permit the now defunct Performing and Mechanical Rights Society (PRMS) to change its name to that same Copyright Society of Nigeria now 1st Defendant herein, without being guilty of partially, discrimination and arbitrariness in the performance of its duties in the incorporation of companies, organizations and legal entities as well as in its treatment of citizens of the Federal Republic of Nigeria, contrary to the clear provisions of the Constitution of the Federal Republic of Nigeria, 1999 and the Companies and Allied Matters Act, 1990 as amended.
  1. A DECLARATION that the 2nd Defendant herein, the Corporate Affairs Commission (CAC) acted improperly and illegally in approving an application by the 1st Defendant herein, the Performing and Mechanical Rights Society (PRMS) to process the change of its name from Performing and Mechanical Rights Society (PMRS) to Copyright Society of Nigeria Ltd/Gte (COSON) at a time when the same Corporate Affairs Commission (CAC) had reserved the very same Copyright Society of Nigeria Ltd/Gte (COSON) for use by some members of the Plaintiff for themselves and on behalf of the Plaintiff.
  2. A DECLARATION that the Honourable Attorney-General of the Federation and the Corporate Affairs Commission (CAC) acted improperly and illegally in granting approval to the Performing and Mechanical Rights Society (PMRS) to process the change of its name to Copyright Society of Nigeria Ltd/Gte. (COSON), having regard to the pendency of the Plaintiff’s petitions to them dated November 13, 2009.
  3. A DECLARATION that Copyright Society of Nigeria Ltd/Gte is so identical or similar or so nearly resembling Musical Copyright Society of Nigeria Ltd/Gte as to be likely to deceive or lead persons to conclude that the two entities and their activities are connected and or owned by the same persons or group of persons.
  4. A DECLARATION that an organization whose genre of copyright is restricted to musical rights could not legally be permitted to use the name ‘Copyright Society of Nigeria’ being a term encompassing rights arising from literature, arts, music, drama, cinematography, broadcast, architecture, computer programmes, and so on.
  5. A PERPETUAL INJUNCTION restraining the 2nd and 3rd Defendants, servants, privies, agents and howsoever from approving or continuing to approve or otherwise recognizing the 1st Defendant as Copyright Society Nigeria (Ltd/Gte).
  6. A PERPETUAL INJUNCTION restraining the 1st Defendant, its members, servants, privies, agents or howsoever from using or continuing to use Copyright Society of Nigeria Ltd/Gte.
  7. AN ORDER directing the 2nd and 3rd Defendants to take necessary steps to cancel, change, alter or rescind any steps it may have taken towards effecting the change or registration of the 1st Defendant’s name as Copyright Society of Nigeria (Ltd/Gte).

AND for such further order or other order or orders as this Honourable Court may deem fit to make in the circumstances.

The 1st Defendant filed a Preliminary Objection to the Plaintiff’s Suit and a Counter-Affidavit to the Amended Originating Summons.

The 1st Defendant’s Preliminary Objection is dated the 5th of April, 2017 and filed same day, via the objection, the 1st Defendant is praying this Court to dismiss this Suit on the following grounds;

  1. The Plaintiff does not have the requisite locus standi to institute this case; not being an approved collecting society by the Nigerian Copyright Commission.
  2. The action by the Plaintiff is statute barred having not commenced same within three (3) months from the date of the cause of action.
  3. The Plaintiff’s action is statute barred against the 2nd and 3rd Defendants.

Filled in support of the objection is an Exhibit and a Written Address, wherein the grounds of the objection were argued.

On ground one, it is submitted by the 1st Defendant that the implication of Section 39(1) & (4) of the Copyright Act, Cap. C28, LFN 2004, is that the Plaintiff is operating in violation of the Laws and as such does not have the legal right to approach this Court to enforce any right.

The Plaintiff which does not have the approval of the Nigerian Copyright Commission to operate as a Collecting Society, does not have the legal right or locus standi to approach this Court to challenge the registration of any entity as a Collecting Society. The condition precedent for the Plaintiff to institute this case having not been fulfilled, this Court lacks the jurisdiction to try this matter. Citing the cases of TAIWO VS. ADEGBORO & ORS (2011) LPELR – 3133 (SC) and the Certified True Copy of judgment in the case of NIGERIAN COPYRIGHT SOCIETY OF NIG LTD/GTE & 7 ORS delivered by the Court of Appeal on the 19th of October, 2016.

On issue two, the 1st Defendant submitted that the Plaintiff which is calling on this Court to cancel the Registration of the 1st Defendant by the 2nd Defendant together with the approval given by the 3rd Defendant for the said registration is an administrative act performed by the 2nd and 3rd Defendants. For this act to be quashed, it must be brought within three (3) months from the date of taking such action under the Rules of this Court. The decision the Plaintiff is challenging herein was taken on the 23rd day of November, 2009, while this action was instituted on the 4th day of March, 2010. This is over a period of five (5) months from the date of the cause of action in this matter. Based on this fact, the action is statute barred and cannot be maintained under the rules of this Court. Citing the cases of C. P. C. & ORS VS. YUGUDA & ORS (2012) LPELR – 9712 (SC); OFILI VS. C. S. C. (2008) 2 NWLR (Pt. 1071) 238 at Pg. 254, Paras. D – C and Order 34 (4) of the Federal High Court (Civil Procedure) Rules 2009.

On issue 3, the 1st Defendant submitted that both the 2nd and 3rd Defendants are Public Officers who performed their function in line with Section 2 of the Public Officers Protection Act Cap P41, LFN 2004 and as such is protected by Section 2(a) thereof. The said provision limits the right of action against the 2nd and 3rd Defendants to three (3) months from the date of the cause of action. The cause of action/decision being challenged was taken by the 2nd Defendant on the 23rd of November, 2009, while the action to set aside and/or cancel that decision was instituted on the 4th day of March 2010. This is over a period of five (5) months. The 1st Defendant also submitted that although the Plaintiff did not mention the date on which the 3rd Defendant took its own decision, however since the 3rd Defendant must first give its approval before the 2nd Defendant can act, it therefore means that the decision of the 3rd Defendant must have been taken earlier than 23rd of November, 2009. The effect is that the Plaintiff’s case against the 3rd Defendant is way out of the limitation period provided to commence this action against the 3rd Defendant. The 1st Defendant urge this Court to dismiss this case with substantial cost awarded to the Defendant.

In opposition to the 1st Defendant’s Preliminary Objection, the Plaintiff filed a Written Address dated the 10th of May, 2017, wherein three (3) issues were raised for determination, which are;

  1. Whether the Instant Notice of Preliminary Objection by the 1st Respondent/Applicant amount to a demurrer.
  2. Whether from the facts of this Suit, the Plaintiff/Respondent being a Company duly registered under CAMA, have the locus standi to institute this action.
  3. Whether having regard to the Ruling delivered by this Court on October 13, 2014, this Court is estopped from entertaining issues 2 and 3 of the instant Notice of Preliminary Objection.

On issue 1, the Plaintiff submitted that the 1st Defendant have not filed a Counter-Affidavit to the Amended Originating Summons in this Suit. The 1st Defendant’s objection amounts to a demurrer. Citing the case of OJUKWU VS. ONYENDOR (1991) 7 NWLR (Pt. 203) at Pg. 286 and Order 16 of the Federal High Court (Civil Procedure) Rules 2009.

On issue 2, it is submitted by the Plaintiff that in considering the locus standi of the Plaintiff, this Court is bound to look into the facts as contained in the Affidavit in Support of the Application alone viz-a-viz case law on the subject matter. From the affidavit attached to the Plaintiff’s Originating Summons, it is clearly shown the interest of the Plaintiff in the subject matter and it has been shown therein a dispute arising from the improper manner in which the 2nd and 3rd Defendants exercised their official powers in effecting the change of name of the 1st Defendant contrary to the provisions of the Companies and Allied Matters Act and in violation of the Right of the Plaintiff as enshrined in Section 42 of the 1999 Constitution, which is the crux of the Plaintiff’s Suit. The Plaintiff has also by paragraphs 22–24 of the Affidavit in Support shown that the name of the 1st Defendant has been and is capable of misleading members of the Public.

The provision of Section 39(1)(4) of the Copyright Act, 2004 are not relevant in this Suit and does not take away the right of the Plaintiff to approach this Court for determination of the questions set out on the face of the Originating Summons. Citing the cases of ADESANYA VS. THE PRESIDENT OF NIGERIA (1981) 2 NCLR 35; FAWEHINMI VS. AKILU (1987) 4 NWLR (Pt. 67) 797; and CHUKWU VS. INEC (2014) 10 NWLR (Pt. 1415) 285 at 414.

The Plaintiff further submitted that the unreported Judgment of the Court of Appeal relied upon by the 1st Defendant is not applicable in this Case. Even though the Plaintiff have not been approved as a Collecting Society, the Plaintiff, being a duly registered Company under CAMA, does not require the approval of the Nigerian Copyright Commission to be able to approach this Court for determination of the questions contained in the Amended Originating Summons in this Suit. The Plaintiff has unfettered right to approach this Court in line with Section 6(6)(b) of the 1999 Constitution.

On issue 3, the 2nd Respondent herein had by a Notice of Preliminary Objection dated November 19, 2013 challenged the jurisdiction of this Court on the ground that this Suit was not commenced within the mandatory three months period provided by statute. The said objection was opposed by the Plaintiff who filed a Counter-Affidavit dated February 5, 2014. Honourable Justice M.B. Idris heard the objection and delivered its Ruling on October 13, 2014 and dismissed the said objection of the 2nd Respondent. The objection of the 1st Respondent is therefore the same as the objection filed by the 2nd Respondent in November 2014, which this Court has determined and become functus officio. Issues 2 and 3 constitutes an abuse of Court Process. Even if this issues have not been decided by this Court, it is clear that the 1st Respondent was incorporated on December 9, 2009 while this case was commenced on March 4, 2010, a period of two (2) months and 25 days from the date the 1st Respondent was incorporated by the 2nd Respondent. The three (3) months period for activating the ouster clause in the Public Officers Protection Act will not kick in until March 9, 2010. This Suit is therefore not barred by either of the three (3) months ouster clause being relied upon by the 1st Respondent. The Plaintiff urge this Court to dismiss the Preliminary Objection.

In Reply on Points of Law, the 1st Defendant submitted that the 1st Defendant is entitled to bring its objection under Order 19 of the Rules of this Court. The only thing the Rule requires the 1st Defendant to do is to file along with its objection, a Memorandum of Conditional Appearance, which the 1st Defendant had duly complied with. The 1st Defendant had never been in Court until it was joined by Order of this Court on the 28th of February 2017, therefore the ruling of 13th October, 2014 cannot be binding on a Party that was never a Party to the matter. Citing the case of AYOADE VS. EXECUTIVE GOVERNOR OF OSUN STATE & ORS (2015) LPELR – 24274 (CA).

All of the above are submissions of Counsels on the Objection of the 1st Respondent.

I have raised the following issues for determination.

  1. Whether the 1st Defendant Preliminary Objection is proper before this Court.
  2. Whether the Plaintiff has the locus standi to institute this Suit.
  3. Whether this suit is statute barred.

On issue 1, which was also raised by the Plaintiff in its Written Address, a challenge to jurisdiction is not a demurrer, it is the general rule of practice that issue of jurisdiction can be raised at any stage of the proceedings even on appeal. It is much more fundamental than that and does not entirely depend as such on what a claimant may plead as facts to prove the reliefs he seeks. It can be taken without filing of pleadings of either side. See the cases so ARJAY LTD VS. AIRLINE MANAGEMENT SUPPORT LTD (2003) 7 NWLR (Pt. 820) 577 at 625, Paras. A – B and NDIC VS. CBN (2002) 7 NWLR (Pt. 766) 272 at 296 – 297, Paras. F – A. The 1st Respondent’s Preliminary Objection is not a demurrer, the objection affects the jurisdiction of this Court to entertain this Suit and can be raised at anytime without even filing a Counter-Affidavit to the Originating Summons. I hold that the Preliminary Objection is proper before this Court.

On whether the Plaintiff has the locus standi to institute, this Suit not being an approved Collecting Society by the Nigerian Copyright Commission. There has been a long judicial tussle on this issue which the Supreme Court has finally laid to rest in the cases of ADEOKIN RECORDS & ANOR VS. MUSICAL COPYRIGHT SOCIETY OF NIGERIA (LTD/GTE) S. C. 335/2008 delivered on 13/7/2018 and MUSICAL COPYRIGHT SOCIETY OF NIGERIA (LIMITED/GTE) VS. COMPACT DISC TECHNOLOGY LIMITED S. C. 425/2010 delivered on 14/12/2018.

In both cases the Supreme Court held that the Plaintiff herein has the locus standi to institute an action as Owner, assignee or an exclusive licensee of copyright.

This Court is bound by the principle of stare decisis to follow the Supreme Court which is the final Court in Nigeria. Its decisions are binding on every Court in this Country.

I therefore hold that in line with the Supreme Court decisions cited above, the Plaintiff have the locus standi to institute this Suit as the Plaintiff rights to institute this Suit as Owners of Copyrights work is not affected by the copyright Act, 2004 which came into force on the 10th of May, 1999.

On issue 3, it is the cause of action as determined from the Originating Process and Statement of claim that is relevant for determination of whether a Suit is time barred. A Court cannot go outside the Originating Process and determine the accrual of the cause of action. See the case of AGI VS. ENO (2010) 5 NWLR (Pt. 1188) Pg. 626 at Pg. 641, Paras. B – C.

Order 34(4):–

An application for judicial review shall be brought within three months of the date of occurrence of the subject of the application.

The Suit before this Court was commenced by an Originating Summons for the determination of questions of law and for declarative reliefs. By the provisions of Order 3 Rule 6 of the Federal High Court (Civil Procedure) Rules 2009, any person claiming to be interested under a deed, will, enactment or other written instrument may apply by Originating Summons for determination of any question of construction arising under the instrument and for a declaration of the rights of the persons interested. See the case of WAKWAH VS. OSSAI (2002) 2 NWLR (Pt. 752) 548 at 561 – 562, Paras. F – B.

The Plaintiff did not bring this action for a judicial review. An application for judicial review is an application to restrain a person from acting in any office in which he is not entitled to act. Order 34 of the rules specifically provides for the mode of commencing an application for judicial review. What the Plaintiff has filed before this Court is an Originating Summons for the determination of questions of law and not for a Judicial Review. The issue of statute of limitation does not apply in this Case.

Now to the Plaintiff Amended Originating Summons filed in support of the Originating Summons. Filed in support of the Originating Summons are Affidavits, Exhibits and a Written Address, wherein the Plaintiff argued the questions it raised for determination.

On question 1, the Plaintiff submitted that there is evidence that it attempted to register the name “Copyright Society of Nigeria as far back as 1984 but was refused by the 2nd Defendant. It will be a violation of Section 42 of the 1999 Constitution for the 2nd Defendant to permit the change of name from the defunct PMRS to the 1st Defendant.

On questions 2 and 3, the Plaintiff submitted that by the Regulations of the 2nd defendant, an Applicant is allowed to reserve a name for use for 60 days. During that period no other Applicant is allowed to use the name. The Plaintiff stated that it had reserved the name Copyright Society of Nigeria (COSON) for 60 days from October 4, 2009 to December 4, 2009 (Exhibit LU2). It therefore amounts to a violation of its own Rules and Regulations for the 2nd Defendant to permit a change of name from PMRS to the 1st Defendant herein at a time that the Plaintiff has duly reserved the name. This is moreso when there is pending with the 2nd and 3rd Defendants’ Petitions dated November 13, 2009 against the use of the name COSON.

On issues 4 and 5, the Plaintiff argued that the changing of the name of PMRS to the 1st Defendant amounts to merely dropping the word “musical” from the Plaintiff’s name and will be passing off its identity and is capable of causing confusion with the Plaintiff’s identity. Citing the case of NIGER CHEMISTS VS. NIGERIA CHEMISTS (1965) 1 ALL NLR 171.

The Plaintiff further submits that an organization whose genre of copyright is restricted to Musical Rights ought not to be permitted to use the name “Copyright Society of Nigeria” being a term encompassing rights arising from literature, arts, music, drama, cinematography, broadcast, architecture, computer programmes and so on. The Plaintiff urge this Court to grant the reliefs sought in its Originating Summons.

In opposition, the 1st Defendant filed a Counter-Affidavit dated the 19th of July, 2017, Exhibit and a Written Address, wherein a Sole issue was raised for determination, which is;

Whether the Plaintiff has a valid or subsisting application for registration before the 2nd Defendant, when the 2nd Defendant registered the 1st Defendant.

As argument, the 1st Defendant submitted that by the combined deposition in the Plaintiff’s paragraph 20(vi), (vii) and (viii), the Plaintiff had admitted that their reservation of name had expired on the 4th of December, 2009. In order to mislead this Court, the Plaintiff claimed that it was informed that the 1st Defendant was approved on the 23rd of November, 2009 when its name reserved was valid and subsisting before the 2nd Defendant. By the 1st Defendant’s Exhibit TO2, the 1st Defendant was registered on the 9th day of December, 2009 as opposed to 23rd November, 2009. By this time, the Plaintiff’s purported reservation expired on the 4th December, 2009. The 1st Defendant was therefore registered five (5) days after this reservation expired. The Plaintiffs purported application to revalidate as contained in its letter to the 2nd Defendant dated 22nd December, 2009 was after the registration of the 1st Defendant.

The 1st Defendant further submitted that the exercise performed by the 2nd and 3rd Defendants are discretionary and as such, cannot be questioned by either the Plaintiff or this Court. The discretion of deciding whether a name to be registered offends an existing name on the Register of the 2nd Defendant is a discretion to be exercised solely by the 2nd Defendant and this Court does not have the jurisdiction to interfere into such exercise. Citing the cases of EZE VS. A. G. RIVERS STATE & ANOR SC. 204/2005 (2010) 7 NMLR, Pg. 227 at 230, Ratio 4.

All of the above are submissions of Counsels.

In October 2009, the Plaintiff had attempted to register the name “Copyright Society of Nigeria” and the said name was approved by the 2nd Defendant. Thereafter the Plaintiff decided that it should add LTD/Gte to the name and therefore submitted another application for availability and reservation of the new name with the 2nd Defendant attaching the original of the earlier approved availability Certificate of “Copyright Society of Nigeria” but the new name was denied, with the advise that they should apply under Part C of CAMA. The Plaintiff then decided to revert to registering the name “Copyright Society of Nigeria” instead of proceeding to apply for a new name under Part C of CAMA. The Plaintiff clearly admitted in paragraph 20(viii) of its affidavit in support of its Originating Summons that by reason of the absence of some of the trustees who were not in Nigeria for their signatures, their solicitors was unable to file before the expiration of the reservation of the name on December 4, 2009. It follows therefore that on December 4th 2009, the name “Copyright Society of Nigeria” made available by the 2nd Defendant to the Plaintiff has ceased to exist for the Plaintiff.

The Plaintiff thereafter through its Solicitors went for re-validation of the name, they were told that they cannot re-validate the name because the 2nd Defendant has approved “Copyright Society of Nigeria Ltd/Gte for a change of name from Performing and Mechanical Rights Society of Nigeria on that same day, November 23rd 2009, which was still within the period of reservation of the earlier approved name “Copyright Society of Nigeria” made available to the Plaintiff before the name expired.

The question now is that did the 2nd Defendant acted within its laws to approve the name “Copyright Society of Nigeria Ltd/Gte” for the 1st Defendant while the Plaintiff’s “Copyright Society of Nigeria” was still in existence.

Section 32 of CAMA is very clear and unambiguous, it provides thus;

32(1): The Commission may on written application and on payment of the prescribed fee reserve a name pending registration of a Company or a change of name by a Company.

32(2): Such reservation as it is mentioned in subsection (1) of this section shall be for such period as the commission shall think fit not exceeding 60 days and during the period of reservation no other company shall be registered under the reserved name or under any other name which in the opinion of the commission bears too close a resemblance to the reserved name.

Exhibit LU2, which is the Certificate of Name Availability of “Copyright Society of Nigeria” was issued and approved to the Plaintiff and is reserved for 60 days. The 60 days is to expire on the 4th of December 2009. It is after 4th of December 2009 that the name will cease to be reserved for the Plaintiff. Also according to the provisions of Section 32(2) of CAMA for the period of reservation no other name which in the opinion of the commission bears too close a resemblance to the reserved name shall be registered.

It is a misnomer to give the name which the Plaintiff has applied to register or similar to what the Plaintiff seek to register to the 1st Defendant on 23rd November 2009 when the time allowed for the Plaintiff to complete their registration has not expired.

The 2nd Defendant on the 23rd of November 2009 approved “Copyright Society of Nigeria Ltd/Gte” to the 1st Defendant. Are the names “Copyright Society of Nigeria” and “Copyright Society of Nigeria Ltd/Gte” not similar and cannot mislead the public as expressed in the opinion of the 2nd Defendant?

Even though CAMA confers the discretionary right to reject or accept a name, the Court has the powers to intervene when such discretionary powers is not properly exercised. The names “Copyright Society of Nigeria” and “Copyright Society of Nigeria Ltd/Gte” are similar and capable of misleading and causing confusion, which will lead to deception. I am satisfied that the two names are similar and the 2nd defendant ought not to have approved “Copyright Society of Nigeria Ltd/Gte” for the 1st Defendant while the reservation of “Copyright Society of Nigeria” for the Plaintiff has not elapsed. The issue whether the Plaintiff’s present name is similar to that of the 1st Defendant is of no moment because the 1st Defendant name was illegally approved as the reservation of “Copyright Society of Nigeria” by the 2nd Defendant for the Plaintiff has not elapsed. Therefore the 1st Defendant cannot lay claim to the name “Copyright Society of Nigeria Ltd/Gte”.

I therefore answer question 1 and 5 in the negative, while questions 2, 3 and 4 are answered in the positive. I hereby grant as follows;

  1. That the 2nd Defendant herein, the Corporate Affairs Commission (CAC) acted improperly and illegally in approving an application by the 1st Defendant herein, the Performing and Mechanical Rights Society (PRMS) to process the change of its name from Performing and Mechanical Rights Society (PMRS) to Copyright Society of Nigeria Ltd/Gte (COSON) at a time when the same Corporate Affairs Commission (CAC) had reserved the very same Copyright Society of Nigeria Ltd/Gte (COSON) for use by some members of the Plaintiff for themselves and on behalf of the Plaintiff.
  2. That the Honourable Attorney-General of the Federation and the Corporate Affairs Commission (CAC) acted improperly and illegally to granting approval to the Performing and Mechanical Rights Society (PRMS) to process the change of its name to Copyright Society of Nigeria Ltd/Gte. (COSON), having regard to the pendency of the Plaintiff’s petitions to them dated November 13, 2009.
  3. That an organization whose genre of copyright is restricted to musical rights could not legally be permitted to use the name ‘Copyright Society of Nigeria’ being a term encompassing rights arising from literature, arts, music, drama, cinematography, broadcast, architecture, computer programmes, and so on.
  4. That the 2nd and 3rd Defendants, servants, privies, agents and howsoever are restrained from approving or continuing to approve or otherwise recognizing the 1st Defendant as Copyright Society Nigeria (Ltd/Gte).
  5. That the 1st Defendant, its members, servants, privies, agents or howsoever are restrained from using or continuing to use Copyright Society of Nigeria (Ltd/Gte).
  6. That the 2nd and 3rd Defendants are directed to take necessary steps to cancel, change, alter or rescind any steps it may have taken towards effecting the change and or registration of the 1st Defendant’s name as Copyright Society of Nigeria (Ltd/Gte).

This is the Judgment of the Court.

HON. JUSTICE SALIU SAIDU
JUDGE
25/3/20

Appearances:

WALE ADESOKAN, SAN with JAMES UJAH Esq for the Plaintiff.

DANIEL OZOMA Esq with C. C. URUAKPA Esq for the 1st Defendant.

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