APPLICABILITY OF ANTON PILLER IN NIGERIA
The laws on copyright infringements are geared towards protecting the maker of an artistic work be it music, books, arts, films and so on, from pirates and will be perpetrators from copying and reproducing the protected work without permission.
In Nigeria, Copyright laws have been in existence since 1863, through the Ordinance No. 3, of the same year. This was an imported law from England, introduced to commonwealth nations. In 1911, the English Copyright Act was also introduced to Commonwealth nations, pursuant to Sections 25-28 of the Act, Nigeria was no exception.
The 1911 Act was in force until 1970 when it was repealed by a Copyright Law of Nigeria, and now Copyright law is governed by the Copyright Act of 1988 Cap c.28 Laws of the Federation of Nigeria.
The agitation for a more indigenous Copyright law was borne out of the fact that the level of piracy of indigenous makers of literal work had reached such an alarming height that something had to be done to curb the activities of these pirates.
There were regular occurrences of pirates copying a work of art and then mass producing them thereby depriving the original maker from earning revenue from the work. There was a need to stop the perpetrators of this act, in other to promote the creativity of these makers, by ensuring that they can earn an income from the work of their sweat.
The 1988 Copyright Act is an Act to make provision for the definition, protection transfer, infringement of and remedy and penalty thereof of the copyright in literary, musical, and artistic works, cinematograph films, sound recordings, broadcast and other ancillary matters.
As well as protecting these copyright materials as stated above, the Act also provides punitive measures against infringement, one of these measures are the inspection and seizure order. This has been developed in order to facilitate prompt actions by injured parties who need to preserve evidence. This Order permits an alleged injured party to visit, search and inspect the premises of a defendant where the alleged infringing activity is taking place. The injured party is also given the power to seize and keep in his custody, copies of infringing products found during the search. This remedy is now commonly known as an Anton Piller Order.
An Anton Piller Order is an order given ex parte (without notice to the other party) for the inspection, photographing and seizing of infringing materials in the possession or control of an infringer. In a normal ex-parte action application, the plea is based on urgency and secrecy.
This order was developed in England in the case in which it derives its name, ANTON PILLER KG v MANUFACTURING PROCESS LTD 1976 1 ALL ER. The facts of the case are succinctly stated as follows;
The Plaintiffs were German manufacturers who owned the copyright in the design of a high frequency converter used to supply computers. They learnt that the defendants, their English agents were planning to supply rival manufacturers with information belonging to the plaintiffs which would enable their rivals to produce a similar product. The plaintiffs wished to restrain the defendants from infringing the copyright, using confidential information or making copies of their machines, but they were afraid that the defendants, if notified would take steps to destroy the documents or would send them out of jurisdiction so that there would be none in existence by the time action reached the stage of discovery of documents. The plaintiffs accordingly made an ex-parte application for an order requiring the defendants to permit the plaintiffs to enter the defendant’s premises in order to inspect, remove or make copies of documents belonging to the plaintiffs.
In granting the order Lord Denning MR, stated inter alia,
“It seems to me that such an order can be made by a Judge ex-parte but it should only be made where it is essential that the plaintiff should have inspection so that justice can be done between the parties; and when, if the defendant were forewarned, there is a grave danger that vital evidence will be destroyed, that papers will be burnt or lost or hidden, or taken beyond jurisdiction, and so the ends of justice be defeated and when the inspection would do no real harm to the defendant or his case.”
He goes on further to say,
“Nevertheless, in the enforcement of this order, the plaintiff must act with due circumspection… They should give the defendant an opportunity of considering it and of consulting their own solicitor. If the defendants wish to apply to discharge the order as having been improperly obtained, they must be allowed to do so. If the defendants refused permission to enter or to inspect, the plaintiff must not force their way in. they must accept refusal, and bring it to the notice of the Court afterwards, if need be on application to commit.”
According to Lord Denning MR, the rationale behind the order being so passive is,
“… It serves to tell the defendant that, on the evidence put before it, the Court is of the opinion that he ought to permit inspection – nay order him to permit and that he refuses at his peril. It puts him in peril not only of proceedings for contempt, but also of adverse inferences being drawn against him; so much so that his own solicitor may often advise him to comply.”
The order given in the Anton Piller case did not compel the defendant to grant the plaintiff entry into its premises. This I presume was so due to the assumption that people in business are people of integrity, such that they do not want to engage in sharp practices in circumventing the law for their own personal benefit, but this is not particularly applicable in a place like Nigeria, where people engage in practices that cut corners in other to fraudulently make money. Also with attending high rate of illiteracy, most people do not understand the consequence of violating a Court order.
Concurring with the judgment of Lord Denning MR, Ormrod LJ sounding a note of caution adds that;
“The proposed order is at the extremity of this Court’s powers. Such orders therefore will rarely be made, and only when there is no alternative way of ensuring that justice is done to the plaintiff.”
He went on further to list three essential pre-conditions for the making of such an order;
“1st there must be an extremely strong prima facie case.
2nd the damage potential or actual must be very serious for the plaintiff.
3rd there must be clear evidence that the defendants have in their possession incriminating documents or things and that there is a real possibility that they may destroy such material before any application inter parties can be made.”
This was a cornerstone in adjudication, though a similar order had been granted in a previous case: EMI v PANDIT 1975 1 WLR 302. But the Anton Piller case was the first to enumerate the conditions of granting the order (listed above.)
Though the Court was a bit passive in the grant of the order, as it requires that the defendant allows the plaintiff entry into the premises, the order has attained popularity in Nigeria as an effective tool in piracy cases, but abuses have been known to occur.
The Federal High Court of Nigeria, which is vested with the exclusive jurisdiction to hear Copyright offences (see Section 46 of the Copyright Act of 1988 Cap c.28 Laws of the Federation of Nigeria) has no specific provision on its powers to make this order, unlike the rules of the Lagos State High Court 2004, (see Order 38 Rule 4 of the rules) but by virtue of the Copyright Act of 1988 Cap c.28 Laws of the Federation of Nigeria, theFederal High Court has the statutory power to grant such an Order.
Section 25 of the Copyright Act of 1988 Cap c.28 Laws of the Federation of Nigeria, provides,
“in any action for infringement of any right under this Act where an ex parte application is made to the court supported by an affidavit, that there is reasonable cause for suspecting that there is in any house or premises any infringing copy of any plate film or contrivance used or intended to be used for making infringing copies or capable of being used for the purposes of making copies or any other article, book or document by means of or in relation to which any infringement under the Act has been committed the court may issue an order upon such terms as it deems just, authorizing the applicant to enter the house or premises at any reasonable time by day or night accompanied by a police officer not below the rank of an Assistant Superintendent of Police and;
a) Seize and detain and preserve any such infringing copy or contrivance,
b) Inspect all or any documents in the custody or under the control of the defendant relating to the action”
This codifies the Anton Piller order making it a legislative law in Nigeria, and going further to make it mandatory that upon the granting of the order, the defendant is compelled by law to comply, unlike the pronouncement by Lord Denning MR, in the Anton Piller case, where the Defendant is not compelled to allow access, but it was assumed that in other to prevent him from being in contempt of Court, or from adverse inferences being drawn against him, he would comply. Most often, such provisions are not complied with in Nigeria, without the attachment of some punitive measure against the erring party.
It can be seen that this provision of the Copyright Actwas significant as Article 50 of the Trade Related Aspect of Intellectual Property (TRIPS) endorses it, (Nigeria ratified the treaty in 1995) and the Article provides that judicial authorities shall have the powers to order effective measures to preserve evidence, especially where delay may cause irreparable harm to the right holder or where there is a demonstrable risk of evidence being destroyed.
As stated earlier, Nigerian Courts’ have considered the Anton Piller order, and granted it in various instances. The order has been exploited and abused, as any allegation of an infringement would necessitate the Court to grant the order, often times without considering the weight of the evidence before them.
In MUSICAL COPYRIGHT SOCIETY NIG LTD v DETAILS NIGERIA LIMITED 1996 F.H.C.L.R. 473, the Court made an Anton Piller Order on behalf of the Plaintiff. The Defendants was asking the Court to discharge the order obtained ex parte on the grounds that the order was obtained fraudulently as relevant facts were not disclosed to the Court before the order was granted and that the Plaintiff had no locus standi to institute the action because he was a collecting society, which had not been recognized by the appropriate body.
ODUNOWO J, held at pg 482 that,
“It is now well recognized that the interlocutory remedies available in IP actions include Anton Piller Orders. Also it is trite learning that all equitable remedies, such as injunctions, accounts of profits, Anton Piller Order and Mareva Orders are discretionary. The only overriding consideration is that such a discretion must be exercised judicially and judiciously in the interest of justice to both sides. In other words, it must not be exercised capriciously, but rather in accordance with the settled rules as discernible from myriad decisions of various superior and appellate Courts. Among the factors normally taken into consideration are these; whether the plaintiff has acted promptly to safeguard his interest as delay could be fatal: whether the plaintiff’s conduct is beyond reproach; whether the remedy would occasion undue hardship on the defendant’ whether damages will be an adequate remedy; whether there is full disclosure of relevant facts and whether the applicant is ready and willing to give an undertaking to damages etc…………… ”
A better understanding of the Order has led to a more judicious grant of it. At page 483, the Judge in upholding the objection and repealing the order stated inter alia that,
“Now that all the full facts have been exhumed there is no basis for continuing to sustain the said order which I have now discovered to have been granted under a misapprehension of the material facts…… the ex parte order made by me ……. is hereby vacated forthwith.”
Also in AKUMA IND LTD V AYMAN ENT LTD, 1999 13 NWLR PT 633 PG 68 @ PG 88 PATS ACHOLONU JCA, stated that
“it must be pointed out that Anton Piller injunction by its very nature is ex facie subversive of the provision of Section 33 of the Former Constitution but it is allowed by the Court in extreme cases of urgency of the situation……… in this Country with the importance of fair hearing drummed into our ears by the provision of Section 33 of the old Constitution it is not an over statement to state that the Court must be circumspect and not unduly careful before granting an order ex parte which by its very nature allows one party to invade the privacy of another”
The criticism of the Anton Piller cannot be over emphasized, as it can be distilled from the cases above where the negative effect of the order was highlighted. Some of the problems associated with the order include the probability of abuse; the constitutionality of interfering with privacy; issues of fair hearing; and the propriety of forcing defendants to answer questions which may incriminate them.
In ROKANA IND PLC v A.S. MAUN & 2 ORS 1993, VOL 3 IPLR PG 187 @ 195, Ukeje “J” stated that
“I should observe that the Anton Piller Application is in grave danger in Nigeria in view of the constitutional guarantee of fair hearing under Sect 33 of the 1979 constitution
But in contrast to this are cases where an Anton Piller order was granted and it was put to effective and judicious use. For example in FERODO LTD v UNIBROS STORES 1999 2 NWLR 509, the order was granted to enter the defendants premises, inspect any documents relevant to the suit and to restrain the defendant from repeating the infringement.
The positive effect of this Order by far outweighs the prejudicial effects. Though when it is abused the Order can invade privacy, cause embarrassment, disrupt business, and impinge on the constitutional rights of the defendant on privacy and fair hearing.
However, justification for the order derives from the facts that a defendant who is engage in such sharp practices should not be allowed to use constitutional rights as instruments for fraud. In maintaining a balance between the rights of private parties and the public, Section 45 of the 1999 Constitution of the Federal Republic of Nigeria, provides that in certain circumstances, those fundamental rights of a citizen might be waived for the purpose of protecting the rights and freedom of other persons.
Therefore, a party who engages in acts that are contrary to any law in Nigeria, but who intends to hide under the provisions of the constitution in protecting himself, shall not be availed by the constitution, and as such will be left to face the consequences.
One way which the use of this order can be circumvented so as not to appear draconian or a breach of the fundamental rights of people can be seen below.
The Supreme Court in KOTOYE V CBN 1989 1 NWLR PART 98 @ PG 419, held that interim orders do not breach the right to fair hearing. Though made without notice to the defendant, interim orders ensure that a Court does not act in vain by preserving the res for a short period. Immediately after an interim order is made, notice is given to the defendant, an opportunity to be heard and to have the order discharged. Unlike an interlocutory order, this is made without notice to the defendant, and is made until the final determination of the suit.
It is apparent that an Anton Piller Order is necessary in the successful prosecution of perpetuators of copyright infringement. It also serves as a deterrent to will be offenders, especially with the added weight given to it by Section 25 of the Copy Rights Act, 1988. Though the attendant abuses occasioned by the grant, makes it an unwilling participant in the disruption of sometimes legitimate businesses, and also a tool used to breach a fundamental right enshrined in our Constitution.
But its usefulness in Nigeria cannot be stressed. This is a Country with an abundant array of creative and talented people, who are not able to enjoy the benefit of their labour because of copyright infringers. A perfect example will be musical and film works. Where, certain talentless, fraudulent, malicious, and opportunist individuals have taken it as a God given right to copy such works with reckless abandon and sell it to the obvious detriment of the maker.
An Anton Piller Order will give a Claimant who strongly believes that a Defendant has in its possession certain works of his that will be used to his economic and intellectual detriment, a temporary relief, pending the time the Court hears the substantive suit, and enters Judgment.
On the basis of this it is believed that for a successful application of the Anton Piller Order so as not to breach the fair hearing provision of the constitution, the Order is to be made as an interim order rather than an interlocutory order, and the Court should also ensure that the requirements listed in the Anton Piller case are strictly complied with, so as not to encourage abuse of it.