IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL(CIVIL DIVISION)
ACCRA - A.D 2019
CHARLES UCHE AYIKA AND CHINEDU SAMUEL UGOCHUKWU - (Plaintiffs/Appellants)
MR. KWESI TWUM AND MULTIMEDIA GROUP LTD - (Defendants/Respondents)
DATE: 11TH JULY 2019
CIVIL APPEAL NO: HI/235/2018
JUDGES: P. K. GYAESAYOR J.A (PRESIDING), I.O.TANKO AMADU JA, AMMA A. GAISIE JA
MR. EZIUCHE NWOSU ESQ. FOR THE 1ST APPELLANT
NANA AKUA ASHUN ESQ. FOR THE 2ND RESPONDENT
TANKO AMADU J.A
(1) This appeal is from the judgment of the High Court (Commercial Division) Accra, dated 11th April 2017. In the High Court, the Plaintiffs/Appellants hereinafter referred to as the ‘Appellants’ claimed against the Defendants/Respondents (hereinafter referred to as the ‘Respondents’ the following reliefs:-
“(a) An injunction to restrain the Defendants whether by themselves or by their servants or agents howsoever from broadcasting or authorizing the broadcasting of the Plaintiffs’ said film “Arrows of Love” parts 1 & 2 or any substantial part thereof without the license of the Plaintiffs.
(2) Special Damages as follows:-
i. Two Hundred Million Naira (N200,000,000.00) or its Cedi equivalent being the value of the contract lost by Plaintiff on account of the Defendants’ infringement of Plaintiffs’ copy right in the film.
ii. Interest on the above amount from 12th October 2009 until final payment.
iii. Fifteen Million Naira (N15,000,000.00) or its Cedi equivalent being the cost of producing the film.)
iv. Ghc9,000.00 (Nine Thousand Ghana Cedi) being cost of transport and hotel lodging so far on various trips to and from Ghana by the Plaintiffs in pursuit of this matter and the criminal prosecution arising out of the Defendants’ infringement of the Plaintiffs’ copyright.
v. General damages for the infringement of the Plaintiffs’ copy right by the unauthorized transmission and use of the Plaintiff’s said film.
vi. Damages for loss of use of the film.
vii. Additional damages for the flagrant nature of the infringements.
viii. Legal and other costs.
ix. Any further or other relief as the court find appropriate.
In the amended statement of claim, the Appellants set out the factual basis of their claim against the Respondents which is summarized as follows:-
(3) That Appellants are the owners of the copyright in the cinematograph film entitled “Arrows of Love” Parts 1 & 2. They had granted the right to market the film to a Nigerian Company called Chiddo Productions Ltd. on a contract valued at N200,000,000.00 whereby Rich Investment Company Ltd. had the exclusive license to market and distribute the English version of the film. That, before four million copies of the film could be supplied, the Respondents had without license from the Appellants commenced transmission of the said film worldwide on their digital television system. The Appellants assert that the conduct of the Respondents was an infringement of their copyright which also resulted in the loss of substantial revenue to the Appellants as set out in the Appellants’ endorsement of reliefs. Hence the Appellants’ action.
(4) The Respondents contested the action. In their amended Statement of Defence, the Respondents apart from the general traverse and a pleading that the matters of the contract concerning the said film were within the peculiar knowledge of the Appellants, did admit that the said film “Arrows of Love” was indeed aired on its broadcast network on account of an agreement they had executed with one Victor Emeghara of O’Hara Productions who was to supply the Respondents with Nigerian films for broadcast on their network. The Respondents’ case is that, the said Victor Emeghara had undertaken to acquire all performance rights including copyrights in authors and performers. Therefore, they could not have known that such permission was not obtained from the Appellants. That upon notice of the infringement of Appellants’ copyrights in the film, they withdrew the movie and returned the master copy of the film to the said Victor Emeghara albeit at a time when the act of infringement had already taken place. The Respondents denied the Appellants’ claim for compensatory damages as set out in the writ and statement of claim.
(5) At the Trial Court, the Appellants settled the following issues for trial.
“(a) Whether or not the Plaintiffs own the copy right in the cinematograph film “Arrows of Love, Parts 1 & 11”.
(b) Whether or not the Defendants infringed the Plaintiffs copyright in the said film.
(c) Whether or not the infringement was flagrant.
(d) Whether or not the Plaintiffs suffered loss as a result of the infringement.
(e) Whether or not the Plaintiffs are entitled to their claims.
The Respondents settled one additional issue for trial as follows:-
“Whether or not the Defendants are not indemnified against any legal action by the Plaintiffs is per the provisions of an indemnity clause in a Television Joint Business Agreement executed with the supplier of the film “Arrows of Love”.
(6) After the trial, the Trial Court found in favour of the Appellants and delivered itself at page 321 of the record as follows:-
“Having so considered the totality of the evidence adduced, this court enters judgment in favour of the Plaintiff as follows:-
Claims (a), (b), (i), (ii), and (iii) are declined.
It is not in doubt that the Plaintiff paid some visits to Ghana before this action was commenced and has prosecuted this matter from 2011. He seeks a liquidated amount but has not given particulars. This court will consider his several expenses in his claim. Claim ‘c’ is accordingly upheld. Plaintiff is granted accordingly Ghc100,000.00.
Claims (d), (e) and (g) are declined.
Costs of Ghc50,000.00 in favour of the Plaintiff”.
(7) By their notice of appeal filed on 16/6/2017, the Appellants have appealed the part of the judgment declining Claim ‘a’ for injunction Claim ‘b’ for special damages, Claim ‘d’ for damages for loss of use of the said film and Claim ‘e’ for additional damages for the flagrant nature of the infringement; as well as the part of the judgment awarding Ghc100,000.00 as general damages in Claim ‘c’ which Appellants contend is inadequate. In the said notice of appeal, a cocktail of grounds of appeal were set out as follows:-
“(i) The judgment is against the weight of evidence on record.
(ii)The Learned Trial Judge erred in law when he declined, without stating any reason, Claim ‘a’ for injunction restraining the Respondent from further infringing the Appellants’ copyright in the film ‘Arrows of Love’ Parts 1 & 2 when there was manifest evidence to anchor the claim.
(iii) The Learned Trial Judge erred in law when he declined without stating any reason Claim ‘d’ for damages for the loss of use of the said film, having found as a fact that by broadcasting the film on prime time and commercially viable airtimes the Respondent was assured of maximum viewership and incomes by way of advertisements while the Appellants who invested so much to create the film could not exploit it and make some money and were rather “left with the short end of the stick”.
(iv)The Learned Trial Judge erred in law when after making a finding of fact that the repeated transmissions of the Appellants’ film without their consent was “flagrant and brazen and done in blatant disregard to whoever had copy right to the work”, he declined without stating any reason, Claim ‘e’ for additional damages for the flagrant nature of the infringement, a relief to which the Appellants are entitled by law having proved same.
(v)The Learned Trial Judge was in error when he declined claim b(i) for special damages of Two Hundred Million Naira or the Cedi equivalent as not particularized and also discountenanced the reasons in evidence for termination of the Appellants’ contract with a third party but relied instead on speculation to decline that claim.
(vi) The award of Ghc100,000.00 as general damages for the bold infringement of the Appellants’ copyright in the film is grossly inadequate as it cannot nearly restitute the Appellants to the position they would have been but for the infringement by the Respondent.
(vii) Further grounds will be filed upon receipt of the record of appeal.
At the time of hearing this appeal, no additional grounds of appeal had been filed.
PRELIMINARY ISSUES ARISING FROM THE FORMULATION OF GROUNDS OF APPEAL
(8) The jurisdiction of this court is one strictly provided for by the 1999 Constitution and the Courts Act 1993 (Act 459). In providing for how that jurisdiction can be properly invoked, there are ground rules of the court contained in the Court of Appeal Rules C.I.19 (as amended).
Under Rules 8(4) and (5) of the Court of Appeal Rules it as provided as follows:-
“(4) Where the grounds of appeal allege misdirection or error in law, particulars of the misdirection or error shall be clearly stated.
(5) The grounds of appeal shall set out concisely and under distinct heads the grounds upon which the Appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.”
(9) From a casual examination of the grounds of appeal upon which the Appellants seek to prosecute this appeal, except ground (i) and (vi) all other grounds have contravened the provisions of both sub rules (4) and (5) for failure to provide particulars of the error of law alleged, and for being clearly argumentative in nature. If the mandatory requirement of the rule were to be strictly applied, all except the two grounds could be struck out as improper and consequently inadmissible and unarguable. This approach would have judicial support in the decision of this court in ZABRAMA VS. SEGBEDZI 2 GLR 221 at 226, cited with approval in the case of DAHABIEH VS. S.A TURQUI & BROS. [2001-2002] SCGLR 498. However, in order that the Appellants’ appeal may not suffer a fatal blow with the consequence that the appeal will be determined on technical grounds and not on the merit of the correctness or otherwise of the Trial Court’s judgment, I shall adopt the practice by the Supreme Court in the case of INTERNATIONAL ROM LTD. VS. VODAFONE GHANA LIMITED & ANOR. (unreported) in Civil Appeal No.J4/2/2016 dated 6/6/2016 where Akamba JSC, after having found that substantially all grounds of appeal settled by the Appellant in that case have contravened the provisions of Rules 6(4) and (5) of the Supreme Court Rules C.I.16 which is in pari materia with Rules 8(4) and (5) of the Court of Appeal Rules nevertheless considered the main complain embedded in the impugned grounds and discussed all the grounds under one composite ground in that the judgment is against the weight of evidence.
(10) In the instant case, the Appellants have in addition to the impunged grounds settled the omnibus ground of appeal which imposes a duty on this court to analyze the entire evidence in record so as to satisfy itself that, on a preponderance of the probabilities, the conclusions of the Trial Judge are reasonably or amply supported by the evidence.
(11) As a matter of fortitude for the Appellants, the new thinking in the Supreme Court when determining a ground of appeal founded on the allegation that the judgment is against the weight of evidence requires a wider scope of an examining all consequential legal issues related to the evidence on record. Invariably therefore, the narrative or arguments the Appellants raised while formulating those grounds alleging error of law or are argumentative, would be assessed though under the omnibus or general ground of appeal.
(12) This approach has judicial support in the decision of the Supreme Court in two relevant cases; OWUSU-DOMENA VS. AMOAH [2015-2016] SCGLR 790 and THE REPUBLIC VS. JUDICIAL COMMITTEE OF THE ASOGLI TRADITIONAL COUNCIL HO, EX-PARTE CHRISTIAN LETSU AVENOR & 5 ORS. (unreported judgment) dated 23/5/18 where Appau JSC expressed the opinion of the Supreme Court as follows:- “I do not find anything wrong with the Appellants canvassing only one legal point in this appeal, when their only ground was the omnibus or general ground that the judgment is against the weight of evidence. We have settled on this issue on our judgment in ATTORNEY GENERAL VS. FAROE ATLANTIC [2005-2006] SC GLR 271 & OWUSU DOMENA VS. AMOAH [2015-2016] SCGLR 790 that: “When an appeal is based on the omnibus ground that the judgment is against the weight of evidence both factual and legal arguments could be made……………..”
(13) Consequently, my approach in determining this appeal is to determine all the grounds of appeal compositely as if the grounds set out are legs of the omnibus ground of appeal in that judgment is against the weight of evidence.
(14) The submission of the Appellants are as follows:-
(i) The Appellant submits that whereas the Trial Court resolved issues (a), (b), (c) and (d) in favour of the Appellant the consequent awards made pursuant to issue ‘e’ did not reflect or flow from the findings made on the said issues (a), (b), (c), and (d). The said issues already set out in this judgment, can be found on pages 15-16 of the record of appeal.
(ii)The Appellants have referred to the provisions of the Copyright Act 2005 (Act 690) particularly Section 47.1 (a) which enjoins a party such as the Appellants whose copyright is infringed, to inter alia seek injunction to prevent the infringement or prohibit the continuation of the infringement among other reliefs.
(iii)The Appellants have further referred to and relied on the provisions of Intellectual Property Rights Proceedings provided under Order 63 Rules 8, 9 and 10 of C.I.47 as well as the general provisions under Order 25 of C.I.47 on interlocutory injunctions.
(iv) According to the Appellant, Section 47(b) of Act 690 the Copyright Act of 2005 vindicates the claim for damages in respect of loss sustained by reason of the infringement.
(15) With respect to the evidence of actual infringement, the Appellants submit that there is evidence on record that Rich Investment Co. Ltd., the Nigerian contracting partner in the sale and circulation of the film for commercial purposes wrote to him abrogating the contract when it received notice of the broadcast of the film by the Respondents. In support of this assertion, the Appellant tendered Exhibits ‘L’, ‘M’ and ‘M1’.
(16) Further, the Appellants’ discovery process for admission of facts and authencity of documents pursuant to Order 23 Rule (2) of C.I.47 which was duly served on the Respondent without response per Exhibit ‘7’ was inspite of the consequence of failure by the Respondent to respond under sub rule 2 of the Order, proved by the Appellants.
(17) The Appellants submit that Exhibit ‘5’ on the record reveals repeated transmissions intended and contracted between the 2nd Respondent and its supplier and quotes the relevant clauses of Exhibit ‘5’ as follows:
“1 1(b) The broadcaster shall provide prime viable and commercially viable airtimes for publicity and broadcast of the programme.
2.2. The broadcaster shall be entitled to repeat broadcast where due to technical reasons and any other cogent reason the first broadcast in the opinion of the Broadcaster should be repeated”.
According to the Appellants, the above clause contained in the agreement between the 2nd Respondent and its supplier pre supposes that repeat broadcast of the programmes constituting the infringement was at the discretion of the broadcaster.
(18) With reference to the findings of the Trial Court, the Appellants referred to page 319 of the record and quoted from the judgment on appeal as follows:-
“Obviously per Clause 1.1(b) of Exhibit ‘4’, the Defendant was under obligation to provide prime and commercially viable airtime for publicity and broadcast of the program. Consequently, these transmission times stated above must have been prime and commercially viable airtime for publicity and broadcast. Primetimes are times when entities like the Defendant are assured of a maximum viewership that is also when commercially they reap in a lot by way of advertisements. For the supplier too, that is when appetite for the work is whetted up for subsequent sale on the open market. The Plaintiff is left with the short end of the stick thereby. This transmission therefore by the Defendant against the back drop of Clause 2.4 of Exhibit ‘4’ and the absence of any assurance for its lawful performance by the supplier makes the Defendant’s act flagrant and brazen to say the least. Clearly by that Clause, it was not stated that the supplier had the copyright in the work and therefore the transmission was done in blatant disregard to whoever had copyright to the work”.
(19) These are the words applied by the Trial Court itself in its own findings. The Appellants’ grief is that notwithstanding the clear case of infringement as found by the Trial Court, the award of general damages is woefully inadequate. The Appellants further assail the refusal to grant the injunction sought in a matter of obvious breach which may continue, and have contested the refusal to grant the claim for special damages as from the mass of evidence adduced at the trial.
(20) In support of the submission on the issue of quantum of damages, the Appellants have referred to the English case of SUTHERLAND PUBLISHING CO. LTD. VS. CANTON PUBLISHING CO. LTD. 1 ALL ER.177 on the mode of assessment of compensation in damages for loss suffered for conversion in respect of infringement actions.
(21) On the leg of the argument that the Trial Court failed to assist reasons for refusing substantially all the reliefs sought by the Appellants, reference has been made to the following cases to further support their contentions on the issue. They are TSATSU TSIKATA VS. THE REPUBLIC [2003-2004] SC GLR 1008 at 1100, OKONTI BORLEY & ANOR. VS. HAUSBAUER 39 GMJ 25 CA at 47 MANU VS. THE REPUBLIC 55 GMJ 176 some of them though decisions on criminal appeals, nevertheless articulate the judicial requirement on a court or tribunal in properly discharging its duty to assign reasons for preferring one piece of evidence to the other in particular the reasons why the party who invokes jurisdiction in the ventilation of his rights should not be entitled to the reliefs.
(22) With respect to the refusal by the Trial Court to award the claim for special damages in the quantum of N200 Million on grounds that particulars of the special damage alleged were not proved, the Appellants assail the reasoning of the Trial Court by submitting that it failed to take account of the termination of the Appellants’ contract with a third party and the consequential total loss of the revenue which would have accrued to the Appellants but for the infringement of the copyright of the Appellants which substantially altered the Appellants’ position in the said contract. To anchor the submission on this issue the Appellants have referred to Exhibit ‘L’ to which the Trial Court ascribed little or no probative value at all because in the view of the Trial Court, the Appellants’ own evidence with respect to the relationship with Chiddo Productions Ltd. and the combined effect of Exhibit ‘J’ would have resulted in the failure of the said agreement between the Appellants and the said Rich Investment Co. Ltd. anyway. Consequently, the resultant effect would have been that the film could have been exposed to the Nigerian market anyway albeit not through Rich Investments Ltd. but through the said Chiddo Productions Ltd.
(23) In contesting this reasoning by the Trial Court, the Appellants rejected same by contending that there was no evidence on record that the Appellants’ contract was terminated by Rich Investments Co. Ltd. for any other reason other than the infringement of the copyright by the 2nd Respondent. Consequently, the Appellants contend that the Trial Court’s attitude to the evidence by relying on what would have potentially occurred because of the involvement of Chiddo Productions Ltd. amounted to judicial speculation.
(24) On the award of damages the Appellants have restated the general position of the law on the award of damages relying on the case of GENERAL TYRE & RUBBER COMPANY VS. FIRESTONE TYRE & RUBBER CO. LTD. 2 AH ER.173 which held that principles laid down in patent cases are applicable in copyright cases in that as a case of economic tort, the measure of damages ought to as far as possible restore a claimant to the position he would have been if the infringement of his intellectual property had not occurred. In concluding the submission on this leg, the Appellants submit that the Trial Court having found that the Appellants suffered actual pecuniary loss, ought not have declined the grant of an award in special damages on the ground that there was no sufficient proof of the degree of injury caused the Appellants. The Appellant charged “that the Trial Court ought in the circumstances to have made an enhanced award”.
THE RESPONDENTS’ SUBMISSION
(25) The Respondents’ submission in contestation of the Appellants’ is as follows:-
(i)The Respondents rely on a certain Broadcasting/Business Agreement between them and one Victor Emeghara of O’Hara Productions in which the said party was obligated to supply them films of Nigerian origin under which contract the Respondent claims the said Victor Emeghara assumed the burden of acquiring all performance rights and copyrights in respect of all authors and performances of films to be supplied. According to the Respondents, for all purposes relative to the Appellants’ claim of infringement it was never in a position to have known that the said permission or authorization of the copyright owner in ‘Arrows of Love Parts’ 1 & 2 had not been sought. This position I must say is consistent with the 2nd Respondent’s pleading at the Trial Court.
(ii) On the charge against the Trial Court that the judgment is against the weight of evidence, the Respondents submit that the Appellants have failed to discharge the duty of proving what evidence is there on the record to have made this court to arrive at any other findings and conclusions different from those arrived at by the Trial Court.
(26) On the issue of the failure by the Trial Court to grant the Appellants’ relief for injunction, the Respondents submit that the law is trite that injunctions are granted as a matter of discretion only where a party succeeds in establishing that its legal or equitable right is threatened or is actually being infringed. In support of their argument, the Respondents have referred to the case of NDEBUGRE (NO.1) VS. ATTORNEY GENERAL & ANOR. [2013-2014] SCGLR 1134 at 1135. The Respondents submit further that, the Trial Court could not have granted an injunction over an alleged activity which has ceased to occur.
This is because it had been established that when the 2nd Respondent became aware of the infringement it returned the master copy of the film to the said Victor Emeghara and consequently could not continue to show the film. The Respondents contend further that the Appellants failed to provide any evidence of a continuing infringement and therefore the Trial Court rightly refused to grant an injunctive relief for a situation already remedied by the Respondents.
(27) On the issue of the quantum of damages awarded, the Respondents have referred to several judicial authorities particularly those on the distinction between general and special damages. They submit that the alleged financial losses the Appellants had pleaded were not supported by any evidence at the trial but merely testified that since the film was shown, no marketer was interested hence resulting in a colossal loss of contract value of N200 Million and the sum of N15 Million being expenses incurred for the production. The Respondents submit that the totality of the testimony of the Appellants adduced during examination in chief and cross examination cumulatively show that no proof was made of the allegations of pecuniary loss as pleaded and consequently the Trial Judge was not in error in refusing to award the claim for special damages.
(28) On the allegation of the inadequacy of the award of Ghc1000,000.00 in general damages for the infringement of the Appellants’ copyright, the Respondents submit that the assessment of damages is a matter within the discretion of the Trial Court which an Appellate Court may normally not interfere with, unless it is manifestly disproportionate one way or the other. The Respondents have referred to cases of BRESAH VS. ASANTE & ANOR.  I GLR 117 SC AND STANDARD CHARTERED BANK (GH) LTD. VS. NELSON [1998-1999] SCGLR 810 AT 812 both of which emphasize the circumstances only, where the Appellate Court may interfere with the award of damages by the Trial Court. The Respondents conclude that upon the evidence on record and application of the relevant law, the Appellant having failed to discharge the statutory burden, the appeal be dismissed.
DETERMINATION OF THIS APPEAL
(29) In my view only three (3) key issues arise for determination in this appeal. They are whether or not on the evidence before the Trial Court and the application of the law, the Appellants are entitled to the grant of an injunctive relief even at this stage of the dispute between them and the Respondents. Secondly, whether the Trial Court was right in refusing to accept the evidence of the Appellants as sufficient to substantiate the claim for special damages. The third is the determination of the issue of adequacy of general damages awarded in the sum of Ghc100,000.00 in favour of the Appellants. Since a determination of these issues will be dependent on the review of the evidence on record it is important to set out the accepted practice and the attitude of this court to findings of fact by a Trial Court generally and to apply those guidelines emanating from a rich line of judicial decisions to the peculiar facts of this case.
(30) It is well settled by a number of decisions of the Supreme Court and this court that, the principles upon which the Appellate Court will reject or accept the findings and conclusions of the Trial Court include the determination whether;
(i)The findings of the Trial Court are perverse and cannot be supported by the mass of evidence on record.
(ii)The findings could be inferences from established facts and therefore the Appellate Court is in a vantage position just as the Trial Court to arrive at the more probable conclusions than those arrived at by the Trial Court.
(iii)The Trial court had applied the wrong principles of law to the evidence adduced.
In the discharge of its appellate duty, this court will embark on:
(a) A reevaluation of the evidence before the Trial Court which it relied upon in making findings and conclusions in favour of either the Appellants or Respondents. It will further determine;
(b)Whether the Trial Court accepted or rejected any evidence upon the correct perception of the evidence.
(c) Whether the Trial Court approached the assessment of the evidence before it properly and had placed the correct probative value on the evidence.
Whether the Trial Court properly weighed the evidence of either side having regard to the burden of proof and of persuasion particularly of the Plaintiffs/Appellants.
(e)Whether the Trial Court appreciated on the preponderance of the evidence which side had discharged its statutory burden.
(f)Whether the Trial Court had correctly applied the relevant law to the evidence before arriving at its findings and conclusions.
All of the above will involve a consideration of the admissibility of the evidence, its authenticity and credibility as well as the conclusiveness in relation to the key issues at the trial. See; the cases of ACHORO & ANOR. VS. AKANFELA [1996-1957] SC GLR 209, OKINE (DECD) RE: DODOO VS. OKINE [2003-2004] SCGLR 582, KOGLEX (NO.2) VS. FIELD  SCGLR 175.
(31) I shall now proceed to determine the three key issues arising for determination in the instant appeal which are (i) the correctness or otherwise of the Trial Court’s refusal to grant the Appellants’ relief for a permanent injunction notwithstanding the finding and conclusion of a “flagrant and brazen” infringement of the Appellants’ copyright; (ii) The refusal to award special damages of N200,000,000.00 or its Cedi equivalent and (iii) the adequacy of general damages of Ghc100,000.00 in favour of the Appellants.
(32) It is well settled that the most effective remedy in all intellectual property actions where a breach or infringement of rights has been established or is threatened, is an order for injunction by the court. In the absence of a permanent injunction, the owner of intellectual property rights is vulnerable to other breaches and infringements either from the same Defendant, his agents and privies or even third parties. In cases as in the instant one, where the remedy of injunction is available by statute, principles and precedents regulating the grant or refusal of injunction at common law are of no real value as they are discretionary. That is why at common law injunction orders in the nature of mareva or atom pillar are discretionary with the only overriding consideration being that it must be exercised judicially and judiciously in the interest of both parties in the action. In other words, if the remedy sought is at common law the grant or refusal ought not be capricious but in accordance with settled rules discernible from a myriad of decisions of the courts.
(33) In the instant case, the Trial Court took a rather simplistic view of the relief of injunction sought and proceeded as if the relief is one that sought to invoke the Trial Court’s discretionary power. In situations such as the instant case where the relief of injunction is a function of a statute, the Appellants were not seeking the relief as a matter of the Trial Court’s discretion but were enforcing a statutory relief. Consequently, whereas it has been held at common law that the right to obtain an injunction is not an independent cause of action on its own but is dependent on the pre existence of a cause of action arising out of the invasion, actual or threatened by a party of a legal or equitable right for the enforcement of which the Defendant is amenable to the jurisdiction of the court, where however, the relief is a provision of statute, the grant of same becomes a matter of statutory duty for the court. That right is no longer merely ancillary and incidental to a pre existing cause of action. The common law position has been well articulated by Lord Diplock in “The Siskina”  AC 210.
(34) In the instant case, once the Trial Court had arrived at a conclusion that the 2nd Respondent had infringed the copyright of the Appellants, assurances by the Respondents that the infringing conduct had ceased ought not to mitigate against the grant of a permanent injunction. The position by the Respondents that at the time of the action they had voluntarily ceased to broadcast the infringing material and had handed over the master tape to one Victor Emeghara of O’Hara Productions is not consequential to the duty of the Trial Court to perform the statutory duty of the protection of the rights of the intellectual property owner of the Appellants. The refusal to grant the injunction sought is erroneous it is hereby reversed. Let the Respondents, whether by their agents, employees, associates howsoever described and by whomsoever be permanently restrained from any further broadcast, or circulation of the Appellants’ cinematography material “Arrows of Love” Parts 1&2.
ON THE CLAIM FOR SPECIAL DAMAGES OF N200,000,000.00 AND N15,000,000.00 RESPECTIVELY AS ENDORSED IN RELIEFS (I) AND (III) TOGETHER WITH INTEREST FROM OCTOBER 2009.
(35) Our law on the award of damages whether special or general is also well settled. A particular reference source is contained in the judgment of the Supreme Court per Dr. Twum JSC in the case of DELMAS AGENCY GHANA LTD. VS. FOOD DISTRIBUTORS INTERNATIONAL LTD. [2007-2008] SCGLR 748. There His Lordship held inter alia at page 759 that; “The authorities are clear on the distinction between special and general damages. I myself, had occasion to dilate on it in the case of YUNGDONG INDUSTRIES LTD. VS. RORO SERVICES [2005-2006] SC GLR 516 at 839. In the Court of Appeal, Learned Counsel for the Plaintiff referred to the dictum of my noble and respected senior NYB Adade JSC, in the case of ROYAL DUTCH AIRLINES (KLM) VS. FARMEX [1989-1990] 2 GLR 623 at 63 SC where he said:
“Special Damages must be specifically pleaded and specifically proved. But the rule does not imply that if one claims general damages only, one cannot lead evidence of specific damages as a foundation for an award of general damages. After all, in coming to a decision as to how much general damages to award, the Court needs some guidance as to financial loss”. Dr. Twum JSC proceeded to add that; “General damages is such as the law will presume to be the natural or probable consequence of a Defendant’s act. It arises by inference of the law and therefore need not be proved by evidence. The law implies general damage in every infringement of an absolute right. The catch is that only nominal damages are awarded. Where the Plaintiff has suffered a properly quantifiable loss, he must plead specifically his loss and prove it strictly. If he does not, he is not entitled to anything unless general damages are also appropriate”.
(36) In the instant case, whereas the Appellants pleaded the particulars of special damages and sought reliefs in the quantum of N200,000,000.00 and N15,000,000.00 respectively, the Trial Judge was not impressed with the quality of evidence adduced to substantiate the said claims. They were rejected and in my view rightly so, as from an exhaustive examination of the evidence of the Appellants at the trial, they failed in my view to marshal enough credible evidence to discharge the statutory burden at the threshold. I accept the finding and conclusion of the Trial Judge with respect to this head of claim, and the appeal on it is hereby dismissed.
(37) Having said that, the Trial Judge found undisputed evidence of infringement on the part of the 2nd Respondent by their own admission. Indeed he described the 2nd Respondent’s conduct as “flagrant and brazen to say the least”. In an infringement action such as the one before us, particularly in this electronic age, the damage to a copyright holder is exponential and almost always immeasurable by the numbers who have without due recognition to the intellectual and economic rights of the holder infringed upon it in a “flagrant and brazen” manner.
(38) In spite of this, the Trial Court found an award of Ghc100,000.00 as adequately compensable to restore the Appellants to the financial situation they would have been if the Nigerian contracting party Rich Investments Co. Ltd. had not terminated the contract between them as a direct consequence of the conduct of the 2nd Respondent. In every action for infringement of copyright, proof of actual damage is not necessary. Damages indeed are said to be at large. In awarding damages for infringement of copyright therefore, the court ought to consider (i) the flagrancy of the infringement and (ii) any benefit shown to have accrued to the Defendant by reason of the infringement. See; the case of WILLIAMS VS. SETTLE  2 AII ER.806. Therefore in awarding damages, the court must take into consideration the flagrant way the Plaintiff’s work was infringed and the apathetic and nonchalant manner in which the Defendant will respond to any notice of the infringement. Where the Defendant’s conduct is motivated by glitters of profit in the infringement of the copyright or is found to be intoxicated by the motivation for that profit, then the award of damages ought to be higher and sufficiently compensable to the Plaintiff.
(39) In the instant case, whereas the quantum of loss sought for by the Appellants was rejected by the Trial Court, the same court found it expedient to make an award in the sum of Ghc100,000.00 although the court itself had placed on record that the Respondents’ conduct was flagrant and brazen. Given that the infringement of copyright is actionable per se and compensatory damages in a general nature will be the natural consequence, I should think that the evidence of the claim for loss contract suffered by the Appellants even in the failure to prove specifically the claim for N200,000,000.00 and N15,000,000.00 respectively as special damages, the quantum of award in the sum of Ghc100,000.00 in the peculiar circumstances of this case is woefully inadequate. I will disturb that award and enhance same by the addition of the sum of Ghc150,000.00 for the undisputed conduct of infringement by the 2nd Respondent which the Trial Court found as flagrant and brazen only because of an assurance the Respondents claim to have had from a business partner Victor Emeghara of O’Hara Productions without proper due diligence.
(40) I am aware that there is an issue in this appeal that the Trial Court failed to assign reasons for some of the conclusions, it arrived at. That issue in my view has now become moot and merely academic as it did not affect our appreciation of the Trial Court’s judgment. Any determination of the judgment style of the Trial Judge is therefore inconsequential.
(41) In conclusion, this appeal succeeds in part in terms of the variations hereinbefore made in this judgment. For the avoidance of doubt, save the said variations with respect to the grant of the permanent injunction and the enhancement of the award in general damages from Ghc100,000.00 to Ghc250,000.00 all other orders and awards contained in the judgment on appeal are hereby upheld.