Sophie Ekwegbali

LEGAL OPINION ON MR. ELIAS OZIKPU v. MELROSE BOOKS AND PUBLISHING LIMITED From a perusal of the facts of the case, the following legal issues are discernable: 1. Whether a valid contract was executed between the Parties. 2. Whether the Defendant is liable to the Plaintiff for copyright infringement. 3. Whether the Universal Basic Education Commission can be joined as a party in this suit. ISSUE 1 Whether a valid contract was executed between the Parties. To aptly determine this issue, it must first be construed whether a Memorandum of Agreement constitutes a valid contract. It is instructive to consider the recent decision of the Supreme Court in BPS Construction and Engineering Company LTD v. Federal Capital Development Authority (2017) LPELR- 42516(SC). The matter before the Apex Court was the determination of whether contractual obligations were created between the litigating parties by the execution of a Memorandum of Understanding. At the Appellate Court, preference was given to the argument put forward by the Respondent’s Counsel who relied on the definition of an “MOU” (the reader is redirected to Letter of Intent) and a “Memorandum” as defined in the Black’s Law Dictionary 8th Edition in support of his argument against the contractual validity of a Memorandum of Understanding. As defined in the Black’s Law Dictionary, a Memorandum of Understanding (MOU) is: “A written statement detailing the preliminary understanding of parties who plan to enter into a contract or some other agreement.– A letter of intent is not meant to be binding and does not hinder the parties from bargaining with a third party. Business people typically mean not to be bound by a letter of intent and Courts ordinarily do not enforce one; one, but Courts occasionally find that a commitment has been made.” Likewise, a memorandum is defined as: “An information, record, note or instrument embodying something that the parties desire to fix in memory by the aid of written evidence or that is to serve as the basis of a future formal contract or deed.” Relying on the above definitions, learned counsel for the Respondent submitted that the mere execution of a Memorandum of Understanding does not satisfy the essential requirements for a valid contract being offeroffered, acceptance/consideration, intention to create a legal relationship and capacity to contract. At best, it indicates an invitation to treat. This was perhaps made more evident by the inclusion of a “subject to contract” clause in paragraph 5 of the said Memorandum of Understanding which states thus: “That this memorandum of understanding is subject to the signing of a formal agreement by the parties.” In reaching its decision, the Court of Appeal adopted the submissions of the Respondent and held thus: “…a memorandum of understanding is an informal document that serves as a reminder that the parties to such a document have a date in future to enter into a contract. Since the MOU is not definite, but subject to the signing of a contract, it is not an offer. For an offer to be capable of becoming binding on acceptance it must be definitely clear and final. A document which merely that merely provides for signing of an agreement in future does not amount to an offer. It is merely a preliminary move in negotiation which may lead or may not lead to a definite offer being made by one of the parties to the negotiation. At this stage when the terms and conditions of the agreement are not known and are not contained in the document so signed, it will be foolhardy for any party to claim that there is are an offer and acceptance. In the instant case, Exhibit P5, the MOU does not qualify as an offer or an acceptance, but an invitation to treat or negotiate.” The decision of the lower court was further affirmed on appeal by the Supreme Court where Justice Kudirat Kekere-Ekun in delivering the lead judgment held: “I am of the view that taking into consideration the elements that constitute a valid and enforceable contract and the legal implications of a memorandum of understanding, the Lower Court, by its finding above has demonstrated a clear understanding of the import of Exhibit P5. Whichever definition is relied upon, the end result is the same. Exhibit P5 is a representation of the intention of the parties, subject to the execution of a formal agreement. The finding of the Lower Court in this regard cannot be faulted. The Court below did not misapprehend the appellant’s case and no miscarriage of justice has been shown to have been occasioned by its finding in this regard. This issue is accordingly resolved against the appellant.” With regards to the instant case, the Plaintiff avers in paragraph 5 of his statement of claim that a Memorandum of Agreement was created by the Defendant and the same was executed by the Plaintiff. No further mention was made of the execution of a formal contract by both parties. It is clear that the Plaintiff intends to rely on the Memorandum of Agreement as the primary evidence in support of his claim for damages for breach of contract against the Defendant. In light of the decision of the Supreme Court in BPS Construction and Engineering Company LTD v. Federal Capital Development Authority supra, it is doubtful whether a reliance on the Memorandum of Agreement as evidence of a contract will suffice to grant him the relief sought in paragraph (e) of the Plaintiff’s reliefs in his statement of claim. Nonetheless, the invalidity of the Memorandum of Agreement as a contract may prove advantageous to other reliefs sought as any term in the said Memorandum transferring the copyrights of his book to the Defendant becomes void and unenforceable. This position will be discussed further in the following issue. ISSUE 2 Whether the Defendant is liable to the Plaintiff for copyright infringement. The relevant legislation to the question of copyright infringement is in the Copyright Act of 1988 CAP C8 LFN 2004. Section 1(a) of the Copyright Act confers copyright protection on literary works. Furthermore, Section 6 of the Copyright Act outlines the various acts which constitute the exercise of a copyright. In respect of a literary work and with relevance to the instant case, Section 6(1)(a)(i)-(iv) of the Copyright Act provides: “A copyright in a work shall be the exclusive right to control the doing in Nigeria of any of the following acts, that is: (a) In the case of a literary or musical work, to do and authorise authorize the doing of any of the following acts:- i. Reproduce the work in any material form ii. Publish the work iii. Perform the work iv. Produce, reproduce, perform or publish any translation” By virtue of Section 10 of the Copyright Act, ownership of a copyright is vested in the author which, as defined in the act, refers to the creator of the work. Flowing from the foregoing it is indisputable that the Plaintiff in the instant case is the author and copyright holder of the book titled HEROES OF THE NIGHT. The Plaintiff’s work is also covered by the provisions of the Copyright Act against piracy and copyright infringement. The question therefore , therefore, arises whether the publication of the Plaintiff’s work by the Defendant without his knowledge amounts to a breach of copyright. The draftsmen of the Copyright Act were unequivocal when they penned down the provisions of Section 15 of the Act which provides in part: “Copyright is infringed by any person who without the license or authorization of the owner of the Copyright:- a. Does or causes any other person to do an act, the doing of which is controlled by copyright… d. Distributes by way of trade, offers for sale, hire or otherwise for any purpose prejudicial to the owner of the copyright, any article in respect of which copyright is infringed under paragraph (a) of this subsection.” From the foregoing, it can be summarized that a party alleging breach of copyright must prove that his work was reproduced without his consent or permission. As gleaned from the facts in the Plaintiff’s statement of claim, an informal agreement was struck for the publication of the Plaintiff’s work titled HEROES OF THE NIGHT by the Defendant. In furtherance of this, preliminary steps were taken to formalize their agreement via the preparation of a Memorandum of Agreement pending the execution of a formal contract. A manuscript of the Plaintiff’s work was sent to the Defendant upon their request with the view that the same shall be published. Arising from the Defendant’s inordinate delay to publish the plaintiff’s work, the plaintiff terminated the agreement via an email dated 15th December 2014, the termination of the agreement was accepted by the Defendant as communicated via their email dated 17th December 2014. Thus by their mutual consent, all relations between the Defendant and the Plaintiff were terminated. The Defendant was neither conferred with the license or authority from the Plaintiff to publish his work. Furthermore, no legal obligation arose on either party to perform their prior agreement in the absence of any written contract. Therefore the Defendant’s publication of the Plaintiff’s work without a license issued in writing as required by Section 11(3) of the Copyright Act satisfies the elements on liability for copyright infringement. It may be contended for the Defendant that the issuance of the manuscript to HEROES OF THE NIGHT by the Plaintiff, as well as the various correspondences between the parties in respect of the agreement to publish the Plaintiff’s work, amounts to a transfer of non-exclusive license to publish by conduct in line with Section 11(4) of the Copyright Act. This argument is however flawed as the mere transfer of a manuscript cannot be interpreted to be implied consent to publish. A case in point is Adenuga v. Ilesanmi Press & Sons Ltd (1991) 5 NWLR pt. 189 pg 82 at 88 where the Court of Appeal held: “Voluntary submission of a manuscript of a book, visits of the author to the establishment or office of the printer and publisher to which the manuscript was voluntarily submitted, and the correction and signing of each page of the “page proof” werewas not conclusive evidence that the author of the book had consented to its publication. All the foregoing acts could equally be construed as evidence of the author of the book requesting the printing of the book simpliciter.” Furthermore, the legal implication of the Supreme Court’s decision in BPS Construction and Engineering Company LTD v. Federal Capital Development Authority supra voids any argument contending that the execution of the Memorandum of Agreement by the Plaintiff connotes a valid transfer of a license to the Defendant to publish the Plaintiff’s work. In conclusion, relying on the cited legal provisions, it is my opinion that the Plaintiff’s suit against the Defendant for copyright infringement will succeed. I advise that the Plaintiff should tender the manuscript to HEROES OF THE NIGHT as evidence in his suit to be juxtaposed by the Court with the copies illegally printed by the Defendant. I also advise that the Plaintiff call an additional witness, Mr. Lanre Oluwatayo, who stood as the Plaintiff’s witness when the Memorandum of Agreement was executed. ISSUE 3 Whether the Universal Basic Education Commission can be joined as a party to this suit As a general rule, only natural persons or legal personalities have the right (inherent, in the case of natural persons and statutory, in the case of created personalities) to sue and be sued in their names, with the exception being business names.- Iyke Medical Merchandise v. Pfizer Inc. & Anor, Fawehinmi v. Nigerian Bar Association (No.2) (1989) 2 NWLR (Pt. 105) 558. By virtue of Section 7 of the Compulsory, Free Universal Basic Education Act 2004, the Universal Basic Education Commission is established by the statute, therefore, conferring on it the rights of a statutory body. As a body created by statute, any action against the Universal Basic Education Commission is competent. Fawehinmi v. Nigerian Bar Association supra; SERAP v. F.R.N & Universal Basic Education Commission ECW/CCJ/JUD/07/10 (ECOWAS, Nov. 30, 2010). Whether an action against the Commission shall succeed is however doubtful in view of the 3-year statutory period of limitation to commence an action against a public officer as provided in the Public Officers Protection Act. More so, the defense under Section 16(3) of the Copyright Act may absolve the Commission of liability as it could be argued in their favor that there were no reasonable grounds to suspect that the Defendant lacked the license to the copyright of the Plaintiff’s book. It is, therefore ,my opinion that though being a competent party, the Universal Basic Education Commission should not be joined as a co-defendant in this suit.