A Federal High Court, Abuja, on Thursday held that MTN Nigeria and its Chief Executive Officer, Ferdi Moolman, must face trial over alleged copyright infringements, notwithstanding settlement with a complainant.
Justice Nnamdi Dimgba gave the ruling in an application filed by an Abuja musician, Dovie Omenuwoma-Eniwo (a.k.a. Baba 2010) seeking a withdrawal of his complaint against MTN over alleged copyright infringement on his works.
The Nigeria Copyright Commission (NCC) had filed a two-count charge against MTN and Moolman, flowing from the petition by Baba 2010.
However, following settlement and restitution by MTN over the infringement, Baba 2010 had asked for the withdrawal of his petition and the charge against the defendants.
In his decision, the judge held that the complainant had the right to withdraw his petition, but the withdrawal would not vitiate the criminal charge against MTN and Moolman.
“I hold that the withdrawal of the petition cannot per force terminate the criminal trial.
“The withdrawal of the petition and perhaps the consent judgement reached by the parties only regulates the parties’ obligations in relation to matters strictly within their control.
“The charge before the court relates to criminal proceedings, which is not affected by the civil arrangements reached between the applicant and MTN.
The judge held that the Copyright Act as passed by the National Assembly makes violation of intellectual rights subject of criminal proceedings irrespective of the rights of the copyright owner.
According to him, section 24 of the Act provides that criminal and civil actions can be taken simultaneously in respect of the same infringement under the law.
He said the discretion to prosecute or not was that of the NCC, the appropriate law enforcement agency.
“I hold that in a situation such as the present one where a copyright owner has withdrawn his petition having settled his differences with the alleged violator, the discretion at all events remains that of the prosecution.
“Indeed, it is a settled principle of law that criminal offences are against the state.
“Until the state has exercised its discretion not to prosecute, the settlement between a nominal complainant and the accused person ought not to affect the criminal proceedings,’’ he said.
The judge dismissed the application by Baba 2010 and adjourned until April 11 for the trial of MTN and Moolman.
In a reaction, NCC lawyer and the commission’s Director of Prosecution, Mr Abdul-Ter Kohol, said the ruling was well considered by the court.
Lawyer to Baba 2010, Mr Rockson Igelige, on his part, said they would study the ruling to decide whether or not they would file an appeal.