PRINCIPLES GUIDING THE GRANTING OF AN ANTON PILLER ORDER.

Three weeks ago, we started a discussion in Saturday Breakfast of the famous Anton Piller Order deployed by litigants in Intellectual Property matters to take suspected infringers by surprise. As we have shown, there are serious arguments for and against the the Anton Piller Order. There is no question that the order which is obtained ex-parte can be very intrusive. As a result, some have gone as far as saying that it is unconstitutional.

The Anton Piller Order is part of our common law heritage. Efforts have however been made in Section 25 of the Nigerian Copyright Act to give the order statutory flavour within our country.

Because of the peculiar nature of the Anton Piller Order, certain principles have been developed to ensure that the order is not granted indiscriminately.

In England, a Consultation Paper on the Anton Piller Order published by the Lord Chancellor in 1992 set out certain principles that must be considered before an Anton Piller order is granted. A study of the practice in Nigeria suggests that the principles are the same. I wish to summarize the principles in this piece.

Just as it is the practice in most applications for practically any ex-parte order in Nigeria, an application for an Anton Piller Order must come with a prima facie case against the defendant before a judge may grant the order. It ought not to be forgotten that an Anton Piller Order is granted to enable the plaintiff obtain evidence suspected to be in the custody of the defendant which the plaintiff needs to prove his case in an intellectual property matter. It therefore means that if there is no triable case against the defendant, the order ought not be granted. The order should also not be an end in itself but a means to an end.

The danger to the plaintiff to be avoided by the grant of an Anton Piller Order must be serious. If there is an application for an order to prevent the destruction of evidence, it must be clear that the evidence is major if not critical to the case of the plaintiff. The onus therefore is with the plaintiff to show through affidavit evidence why this intrusive order should be granted.

The risk of destruction or removal of evidence must be a good deal more than merely possible. There must be reason to believe that if an injunction was granted against the defendant to preserve the evidence in question, the defendant will disobey such an injunction.

A judge granting the order would ensure that the harm likely to be caused the defendant or his business by the execution of the order must not be excessive or out of proportion to the legitimate object of the order.

Once again, as it is the practice in practically all ex-parte applications for injunction, the plaintiff would be required to give an undertaking to pay damages to the defendant if at the end of the day, it is determined that the order should not have been granted.

Justice Tajudeen Odunowo, then of the Federal High Court, restated some of these principles in Musical Copyright Society Nigeria (Ltd/Gte) v. Details Nig. Ltd. He went further to emphasize the absolute necessity of full disclosure of relevant facts. In other words, an applicant for the order must not suppress or fail to disclose any fact which is relevant to the granting of the order.

Musical Copyright Society Nigeria (MCSN) had on 8th May 1995 obtained a Section 25 order against Details Nig. Ltd. The defendant applied to discharge the order on the ground that it was obtained fraudulently. According to the defendant, relevant facts were not disclosed to the court before the order was granted. Justice Odunowo agreed with the defendants. In discharging the order, he made the following statement:

"Until the defendant raised the issue in their further and better affidavit in support of the present application, the plaintiff did not allude to the fact that they had applied for registration as a collecting society and that their application had been rejected by the Nigerian Copyright Council._If it has been brought to my attention that there was a pending controversy as to the status of the plaintiff company, I would certainly have been most reluctant to grant the ex parte order as I was virtually misled to do on that occasion. 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 material facts."

Dear readers of Saturday Breakfast; I hope I have not wasted your time in our lengthy discussions on the Anton Piller Order which I consider very important in the fight against copyright infringement. In our future tutorials, we will dwell on other aspects of the domestic and international dimensions to copyright and related rights.

See you next week.