i. Introduction:

[1] The universe unfolded so beautifully for the Plaintiff Laverne Carranza Naa Okailey Shooter, in 2012/2013 as she was crowned Miss Ghana 2012. According to her, her success at the Miss Ghana event gave her the opportunity to represent Ghana at the Miss World in 2013 and was the Second Runner up at the event organized in Bali, Indonesia. As a result of her position she says she became known as Miss World Africa for the year 2013.

[2] This action instituted on July 14, 2015 is against Intercom Programming and Manufacturing Company Limited (IPMC). By this action the Plaintiff is praying for a declaration that the Defendant used her image and also referred to her as an Ambassador of the Defendant Company without her consent/authorization. The Plaintiff is therefore praying the Court for the sum of Fifty Thousand United States of America Dollars ($50,000.00) as compensation and interest on the said sum of money. The lawsuit started when the Plaintiff was a Student but according to the evidence she is now a Junior Doctor at the Maxillofacial Department at Korle Bu Teaching Hospital in Accra. In my opinion, I will therefore not be far from right to describe the Plaintiff as a “beauty with brains”.

[3] The Defendant per its Amended Statement of Defence filed pursuant to the leave of the Court on April 26, 2017 denied all of the Plaintiff’s allegations. The Plaintiff averred that it was an official sponsor of the 2012 Miss Ghana Pageant which was organized by Exclusive Events Ghana Limited. It further averred that as part of the sponsorship deal, the Defendant acquired the right to use the images of the contestants including the Plaintiff in furtherance of its business activities. The Defendant further averred that its use of the image of the Plaintiff on its billboards was premised on a Model Release Agreement which was executed by the parties to enable the Defendant feature the Plaintiff on its billboards for a period of twelve (12) months beginning from May 2013 to April 2014. According to the Defendant as per the agreement the Plaintiff agreed to be paid an amount of Ten Thousand United States Dollars ($10,000.00).

[4] The Defendant further averred that in 2014 it again entered into another agreement with the Plaintiff to use her images on its wall calendar for a period of 12 months from January 1st^, 2015 to December 31, 2015 for a fee of GH¢5,000. The Defendant therefore averred that based on the terms of the agreements signed with the Plaintiff the use of the Plaintiff’s image on the Defendant’s billboard beyond the terms of the agreements did not amount to a breach of the agreement. The Defendant also averred that the Plaintiff demanded an amount of $50,000.00 as compensation for the use of her image, but the Defendant viewed the demand as unreasonable. Based on the averments above and others contained in the amended statement of defence the Defendant therefore prayed the Court to dismiss the suit.

[5] The Plaintiff filed an Amended Reply in answer to the Amended Statement of Defence on May 31, 2017 to rebut the averments contained in the defence and in particular the averment that the Plaintiff’s image was used pursuant to two agreements signed with the Defendant. It was averred by way of a reply that the use of the image was subject to further payments to be agreed upon by the parties but that agreement was never agreed to by the parties. Also, by way of a reply the Plaintiff conceded that she demanded an amount of $50,000.00 for the use of her image on the billboards.

ii. The Issues

[6] At the close of the pleadings, both parties filed issues for determination by the Court. The Plaintiff formulated four issues and the Defendant’s first Counsel also formulated three additional issue. All the issues were adopted by the Court and same were set down. The issues were as follows:-

Issues filed by the Plaintiff on March 16, 2016:

1. Whether or not the Defendant Company used the Plaintiff’s image for its billboards without her authority.

2. Whether or not Plaintiff had a valid contract with the Defendant Company to use her image and/or portray her as Technology Ambassador for the Company?

3. Whether or not the Plaintiff is entitled to her reliefs?

4. Any other issues that may arise from the pleadings.

The Additional Issue filed by the Defendant on 22/3/2016 were;

1. Whether or not the Defendant is entitled to its Counterclaim?

2. Whether or not Plaintiff’s action in seeking recovery of damages for the alleged wrongdoing of Defendant is a stale claim by virtue of the Statute of Limitation.

3. Whether or not Plaintiff’s claim for $50,000.00 amounts to unjust enrichment.

In effect, the core issue in both the action and the counterclaim earlier filed for the Court’s determination is whether the Plaintiff’s claim is sustainable.

iii. Evidence heard by the Court:

Plaintiff’s Evidence:

[7] Giving evidence on oath in support of the claim the Plaintiff testified that she participated in the Miss Ghana Beauty Pageant and emerged the overall winner. According to the Plaintiff she got to know the Defendant Company as one of the sponsors of the pageant. Miss Okailey Shooter further testified that by virtue of winning the 2012 pageant she represented Ghana at the 2013 Miss World pageant which was held in Bali, Indonesia and finished as the second runner up. She further said by being the second runner up she became known as “Miss World Africa for the year 2013”. The Plaintiff further told the Court that she became an “international icon” and easily became recognizable within the international community as a result of her performance in Bali and her appearance at international conferences and fora.

[8] Miss Okailey Shooter further testified that in the year 2015 “I noticed that the Defendant Company without my consent had used my image for their billboards which they had mounted all over the country. I can recall seeing at least three (3) of these billboards with my image mounted in Accra, Kumasi and Takoradi”. According to her the Defendant Company did not only use her image but also portrayed her as its ‘Technology Ambassador”. The Plaintiff says because she was unhappy about the Defendant’s actions she caused her lawyer to write to the Defendant and demanded to be paid the sum of $50,000.00 or its cedi equivalent as compensation.

[9] It is the further case of the Plaintiff that the Defendant Company’s Chief Executive Officer (CEO) admitted liability during discussions with him and indicated the Company’s willingness to compensate her. That notwithstanding, the Plaintiff said all efforts to get the Defendant Company to compensate her and thus settle the matter failed because it is “clear the Defendant Company if not compelled by a Court of competent jurisdiction will not make any payments to me”.

[10] According to the Plaintiff it is not disputed that the Defendant used her image without her authorization with the sole aim of “promoting their business and making monetary gains”. Ms. Okailey Shooter said as an internationally acclaimed icon the unauthorized use of her image has resulted in loss of money to her “as other Information Technology Companies who would have wanted to enter into an agreement with me for the use of my image to promote their business, will pull out as it pertains in the industry due to the billboards mounted by the Defendant Company”.

[11] Justifying the amount of $50,000.00 dollars demanded, the Plaintiff said she took into consideration her international status and the reference to her as a “Technology Ambassador” for the Company. She said “in the advertising industry an “Ambassador” is the face of the Company and performs certain defined roles. Further due to these roles to be played by the Ambassador the fees charged by the person to be used as the Ambassador are higher that what pertains in normal contracts”. Ms. Okailey Shooter referred to a contract she signed with a Pharmaceutical Company known as Pharmanova Company Limited, which used her image for advertising purposes and the amount she was paid to be the basis for the $50,000.00 she claims. According to her Pharmanova Company Limited paid her an amount of One Hundred Thousand Ghana Cedis (GH¢100,000.00).

[12] Reacting to the Defendant Company’s defence filed, she testified that it is not true that the Defendant had the right to use her image for commercial purposes based on an agreement the Defendant had with Exclusive Events Ghana Limited, the organizers of the Ms. Ghana Pageant. According to her even if any such agreement existed it was only for the year 2012 and not the year after. According to her the 2015 agreement she signed with the Defendant Company did not give them the right to use her image by erecting “the offensive and unauthorized billboard in the year 2015”. The Plaintiff later filed a Supplementary witness statement on 12th July 2016 to attach Exhibit ‘C” and “D”, and same were adopted at trial and entered accordingly.

[13] Ms. Okailey Shooter tendered in support of her evidence, the following exhibits:

i) Exhibit A – An Advertising Agreement dated July 2, 2015 between Plaintiff and Pharmanova Limited;

ii) Exhibit B – Model Release Agreement between the Plaintiff and the Defendant Company dated 1st November 2014;

iii) Exhibits C – A photograph of the Plaintiff on a Billboard alleged to have been erected in Kumasi; and

iv) Exhibits D – A photograph of the Plaintiff on a Billboard alleged to have been erected in Accra.

Defendant’s Evidence:

[14] The Defendant’s witness who testified was Mr. Amar Deep Singh Hari, the Managing Director of the Defendant’s Company. The witness statement of Mr. Singh Hari filed on July 12, 2017 was adopted at trial. His evidence was that the Defendant Company became a proud official sponsor of the 2012 Miss Ghana Pageant which the Plaintiff won. According to the Defendant’s witness “as part of the sponsorship agreement, images of the contestants of the pageant including the Plaintiff were taken together with officers of the Defendant Company and same published for use by the Defendant as sponsor of the pageant”. The witness further said the Company established a relationship with the Plaintiff from 2012 and supported the Plaintiff as part of its corporate social responsibilities. Mr. Singh Hari further testified and confirmed that the Defendant entered into an agreement with the Plaintiff through agent for the purpose “of featuring the Plaintiff in the Defendant’s billboard advertisement for a period of twelve (12) months from 1st May, 2013 to 2nd April, 2014, at a rate of Ten Thousand United States Dollar (USD$10,000.00)”. The witness tendered what he said is a copy of the agreement signed as “Exhibit 1”.

[15] The Defendant’s witness further testified that the Company entered into a second agreement dated November 14, 2014 with the Plaintiff for the use of her image for calendars for twelve months from January 2015 to 31 December 2015 for a fee of GH¢5,000.00. A copy of that agreement was tendered as Exhibit ‘2”. According to Mr.

Singh Hari the parties “anticipated a situation where the Defendant may require to use the Plaintiff’s images beyond the agreed period of twelve (12) and specifically provided in clauses 8 and 10 of both 1st and 2nd Agreements respectively that any such desire by the Defendant to use Plaintiff’s images beyond the contract period shall be subject only to an agreement of the amount payable”. The Defendant witness therefore said “use of Plaintiff’s images for Defendant’s bill board was therefore not a total breach of the Agreement considering the parties’ previous course of dealing with each other”.

[16] The witness conceded that in the year 2015, and before the expiration of the second agreement the Defendant used the Plaintiff’s images for billboards advertisement. He said upon seeing the billboards the Plaintiff called to register her disapproval in the use of her image. According to the Defendant’s witness the Company immediately pulled down the billboards and requested a meeting with the Plaintiff “to agree on an amount payable since Defendant desired to use the Plaintiff’s images for its advertisement on billboards and the agreement provided for such an instance”

[17] According to the Mr. Singh Hari despite the relationship between the parties, the Plaintiff insisted on receiving $50,000.00 as compensation. According to the witness the Company “insisted on paying a reasonable sum based on the fact that “the earlier agreement for billboard advert cost USD 10,000 but Plaintiff will hear none of that”. He also said even though the billboards had been pulled down the Plaintiff instituted the instant action. The Defendant’s witness also said “it is our contention that the Defendant had a valid contract with the Plaintiff for the use of her image for the period of 1^st January to 31^st December, 2015”.

[18] The further case of the Defendant is that the Plaintiff’s use of the Pharmanova Limited agreement as the basis for the instant claim and the amount of $50,000.00 is not justified because as per Exhibit “A”, the Plaintiff under the said agreement was required “to among other things, run jingle recordings on radio stations, appear on TV stations, display her portraits on bill boards and vans and organize promotional functions”. To that extent it is the case of the Defendant that the role of the Plaintiff under the Exhibit “A” “cannot in any way be compared to those to be performed for the Defendant under the 1st Agreement. The comparison alleged by the Plaintiff is unparalleled”.

[19] Based on all of the above, the Defendant’s witness testified that the Plaintiff’s claim for $50,000.00 has no basis. Rather, Mr. Singh Hari said “I pray that based on 1st and 2nd Agreements and the existing relationship between the parties and their previous course of dealing, the Defendant be made to pay to Plaintiff as compensation a reasonable and prorated sum”.

[20] Like the Plaintiff the Defendant Company also did not call any other witness and closed its case. That sums up the evidence of the Defendant’s representative Mr. Singh Hari in defence of the Plaintiffs’ case. In a nutshell the above is the evidence heard in this case.

iv. The Court’s Evaluation & Analysis of the Evidence:

[21] I start this analysis by stating that it is indeed disappointing that this simple case has taken almost four years since it was first filed to be completed. I note that Counsel for the Defendant whose name appear in this judgment as Counsel of record is the 3rd Counsel for the Defendant since the suit was instituted. The change of Counsel at all times unreasonably delayed the adjudication of the suit. Also, after the suit started the Court was compelled to grant a long adjournment from May 2018 to October 2018 because the Defendant’s witness said he was travelling outside the jurisdiction and was therefore not available for the continuation of the cross-examination. In October the Defendant’s Counsel applied to be removed as Counsel. I wish to state that I have chosen to state these remarks not as a condemnation of the Defendant per se but to remind all litigants that protracted delays in the administration of justice, impact negatively on all those who access the Courts and indeed give a wrong impression about the administration of justice in this Country. I trust that going forward we shall all play our part to prevent undue delays in the prosecution and adjudication of cases in the courts because the canker has certainly become a scar on the conscience of our dear nation.

[22] Based on the evidence before the Court I wish to state that the additional issues 1 and 2 stated above became moot before the trial started. The Defendant in its Amended Statement of Defence abandoned the Counterclaim initially filed when the statement of defence was filed. Also, as per the evidence heard the Defendant provided no evidence that the Plaintiff’s claim is caught by the statute of limitation ad therefore statute barred. To that extent those two issues above are struck out as unnecessary and abandoned.

[23] The law is trite and same supported by statute that for a court to decide a case one way or the other, each party to the suit must adduce evidence on the issues to be determined by the court to the standard prescribed by law. This position is supported by various provisions of the Evidence Act 1975 (NRCD 323) Section 14 of which provides:

“(14). Except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting”.

The burden of producing evidence by both sides in the suit as well as the burden of persuasion is one to be determined on the preponderance of probabilities as defined by Section 12(2) of the Evidence Act 1975 (NRCD 323).

[24] It is also trite law that for every case there is a burden of proof to be discharged and the party who bears the burden will be determined by the nature and circumstances of the case; See Sections 10 – 17 of the Evidence Act 1976 (NRCD 323). I note that there is no paucity of case law interpreting the provisions of NRCD 323. In ABABIO v AKWASI 111 [1994-95] Ghana Bar Report, Part 11, 74 the court stated that a party whose pleadings raise an issue essential to the success of the case assumes the burden of proving such issue. See also RE ASHALLEY BOTWE LANDS: ADJETEY AGBOSU & ORS v KOTEY & ORS [2003-04] SCGLR 420 which further elucidate the burden of proof as statutorily provided. I shall now proceed to examine the evidence adduced in support of the Plaintiffs’ case and will relate same in the context of the standard of proof I have already set out in this judgment.

[25] The law is that when an allegation of fact in a pleading is admitted by the opposing party the person alleging need not adduce evidence on the allegation - see TAKORADI FLOUR MILLS v. SAMIR FARIS [2005-2006] SCGLR 882. So also will the principle of implied admission for failure to cross – examine apply where a party is held to have accepted without question the evidence of his opponent when he fails to cross-examine on material matters for which evidence has been adduced in the support of the case of his opponent and therefore no further evidence need be adduced by the opponent. As stated above the core issue for my determination is whether or not the Plaintiff’s claim for $50,000.00 is sustainable. I note that even though the Defendant admitted in both its pleadings and the evidence in chief that it used the Plaintiff’s image for its billboard without her authorization, Mr. Singh Hari under cross-examination said a fee was agreed to with the Plaintiff before the billboards were mounted.

[26] The following evidence crucial and relevant to the issue under discussion was elicited during the cross-examination of the Defendant’s witness on May 22, 2018.

“Q: Did you at any time negotiate with the Plaintiff for the payment of money before you put her image on the billboard.

A: Yes we met in December 2014 and we discussed it.

Q: Did you come to an agreement as to the amount payable for using her image on the billboard which is the subject matter of this litigation.

A: Yes from my side we had this understanding.

Q: Can you please tell the court those who were present at the meeting and amount agreed upon.

A: Naa came to me in December 2014 to ask for advance. I told her it was end of the year and we were very tight but she should come in January we are renewing her contract of billboards and she should collect money from there. I called in my Financial Controller and told him that we are renewing Naa’s contract for billboard which was USD10, 000 the year before and he should advance her some payment on that in January. Naa was quiet she did not object to it.

Q: From what you have said, did your company through the Financial Controller carry out your instruction and paid the Plaintiff the sum of USD10, 000 before you put her image on the billboard.

A: Not at all. When we have an ongoing relationship with the model, the account knows by default that payments need to be done and our marketing/creative department also know that IPMC always pays their models so they should continue to work normally on new creatives and installing new billboards. It is a very normal part of our business to trust our models and models trust us in return. We did not for this reason see any reason of why we should treat an existing model who has already had two successful contracts with full money paid to her, there should be no reason to suspect that any kind of negotiation with her will fail. More over in the last agreement it was clearly written that we can use her images for 2015.

Q: Can you show me where that is, that you can use her image for 2015.

A: Exhibit “2” Clause 2 (witness reads)

Q: I am putting it to you that nowhere in those two exhibits give your company the right to use the Plaintiff’s image and pay her the agreed amount.

A: No I do not agree to that

Q: This meeting that you said was held between the Plaintiff, yourself and the Financial Controller where the Plaintiff was to be paid USD10,000, do you have minutes covering that meeting.

A: I am not sure. We will have to check from records.

Q: From the time that the alleged meeting was held where the Plaintiff allegedly was to be paid USD10,000 till the date when she instituted this action, did you make any payment into her account or issue her a cheque with the face value of the USD10,000 allegedly agreed upon.

A: No.

Q: After this alleged agreement was held did you reduce that agreement into a contract for the Plaintiff to sign just as she did with the previous contracts i.e Exhibits 1 and 2

A: Yes I had instructed the advertising agency that we shall be renewing Naa’s contract and they should get in touch with her for the formality.

Q: Can you please show me from your witness statement and documents that you have attached where that contract is.

A: No I do not think we have covered that in our statement.

Q: I am putting it to you that there is no contract because there was never any meeting between yourself, Financial Controller and the Plaintiff where an amount of USD10, 000 was agreed upon for her image to be put on the billboard.

A: No I would like to correct you, the meeting was between Naa and myself. The Financial Controller was called in at the end of the meeting and given instructions.

Q: I put it to you again that there was never a meeting between yourself and the Plaintiff where an amount of USD10, 000 was agreed for the use of her image on the billboard which is the subject matter of this litigation.

A: No I do not agree.

Q: I am further putting it to you that your company used her image for the billboard without authority of the Plaintiff as there is no contract between the parties

A: No I do not agree. The intent of using her images for 2015 was there and expressed in the previous contract”.

[27] After my examination of the evidence adduced at trial including the piece of evidence of Mr. Singh Hari that after the Defendant mounted the billboards the Plaintiff called to register her disapproval in the use of her images on the Defendant’s bill boards, “the Defendant immediately pulled down the billboards and requested a meeting with the Plaintiff to agree on an amount payable…”, it is my holding that the Defendant’s witness testimony elicited under cross-examination is therefore only a figment of his imagination because there is no ring of truth to the piece of evidence as no scintilla of evidence was proffered by the Defendant to support the allegation that a fee was agreed to before the mounting of the billboards.

[28] Also, it is important to look at another aspect of the defence erected by the Defendant in this case. According to the Defendant a look at “clauses 8 and 10 of the 1st and 2nd Agreements show that the Defendant’s use of Plaintiff’s images go beyond the contract period and shall be subject to an agreement of the amount payable. Based on that, the Defendant testified that the use of the Plaintiff’s images on the bill board was not a total breach of the agreements.

[29] Again, having reviewed both agreements and the evidence I am of the respectful view that the Defendant’s position is of no moment. First and foremost the Model Release Agreement tendered as Exhibit 1 does not assist the Defendant because it had expired when the Plaintiff’s images were used for the bill board advertisement. That agreement was for the Plaintiff to make herself available to the Advertising Agency of the Defendant, Admedia FCB for “purposes of featuring in Client’s press and billboard advertisements for the period May 2013 – April 2014”. It means in 2015 when the Defendant used the Plaintiff’s images that agreement was not in existence. The Paragraph 10 the Defendant relies on states:

“Should the Client wish to use the photographs/images beyond the agreed period, the Client shall pay to the Agent an amount agreed with the Agent”.

In this case, there is no evidence that the parties agreed to any amount before the Plaintiff’s images were used in 2015 for the billboard advertisement.

[30] Further, it is my holding that reliance on Exhibit “B” is also not helpful to the Defendant as a defence. That is also Model Release Agreement dated 1st November 2014. It was from 1st January 2015 – December 31, 2015. Paragraphs 2 and 8 state as follows:

2. “That photographs/images once taken shall become the property of the Client who shall have the exclusive right to use them for all advertising (2015 IPMC Wall Calendar) for the agreed period”

8. “That should photographs/images be used beyond (12) months of initial exposure the client shall pay to the model an amount agreed with the model. This agreement shall be reviewed after twelve (12) i.e. after December 2015”

For the avoidance of doubt the Client in the agreement is the Defendant herein and the Model is the Plaintiff.

[31] Applying myself to the law in regards to the second contract signed and which was in effect when the Plaintiff’s images were used for the billboards, I hold the respectful view that the Defendant’s reliance on the paragraph 8 is untenable. A look at what the Client could use the images/photographs for did not include a billboard. It was for a Calendar. There are no other string of words in the agreement for the use of the images other than a calendar. Reading billboards to the one main purpose stated in the agreement, being “Calendar’ clearly will do violence to the language of the agreement signed. To my mind it is disingenuous for the Defendant to attempt to include “billboards” into the agreement.

[32] My position above is fortified when one looks at the canon of interpretation known as Ejusdem

Generis rule. His Lordship Dennis Dominic Adjei JA posits that rule simply means in construing statute and documents, (may I have the liberty to add agreement as in this case) the Courts should have regard to the general words used as well as the words of the same class preceding it and the meaning of the preceding words should be limited by the general words used[1]. Justice Adjei further quoted the distinguished legal scholar Aharon Barak, the author of the book ‘Purposive Interpretation in Law’ to the effect that “Similarly, if a legal text contains a string of details followed by a general phrase – like a statute about “trucks, buses, private cars, or other vehicles” – one can assume that the general phrase, “other vehicles”, includes additional items of the same type (vehicles that move on land, not ships and airplanes); ejusdem generis” See also the case of ASARE v ATTORNEY-GENERL [2003-2004] 2SCGLR 823 and the opinion of Prof Kludze JSC in construing Article 60 (8) of the 1992 Republican Constitution.

[33] Based on all of the evidence heard and my analysis above I hereby enter judgment in favour of the Plaintiff for the reliefs (a) endorsed on the Writ of Summons and declare that the use of the Plaintiff’s image and the reference to her as an Ambassador of the Defendant’s Company were without her consent and thus unauthorized. That finding is an easy one to make in the present case which, as I held elsewhere in this judgment the Defendant concede.

[34] Turning then to the salient question before the Court, which is whether or not the Plaintiff’s claim for $50,000.00 is sustainable. In other words my findings above notwithstanding, can it really be said that the Plaintiff has established on the balance of probabilities her claim in the sum of $50,000.00 endorsed on the writ as compensation?

[35] Can it be said that she proved the figure stated with cogent evidence? In my view, while I have no problem agreeing with the Plaintiff that she is entitled to compensation for the unauthorized use of her images on a billboard by the Defendant; I have difficulty accepting the bare assertion and her say so that the compensation ought to be $50,000.00. To my mind no cogent/persuasive evidence was put before the Court for the grant of the said amount of money.

[36] The following exchange between the Plaintiff and the Defendant’s former Counsel Akua Mirekua Nimako Boateng (Mrs.) gives the Court the basis for the claim by the Plaintiff. This was when Ms. Okailey Shooter was cross-examined on May 14, 2018.

“Q: Kindly take a look at your Exhibit “A” which is the contract you entered into with Pharmanova

Ltd in 2015. The contract period was two years, not so?

A: Yes my lord

Q: You have tendered Exhibit “A” as your sample agreement with other companies and it also forms the basis of your claim for USD50, 000 compensation from IPMC, is that the case

A: Yes my lord

Q: Under Clause 1 of your Exhibit “A” your obligations under the contract with Pharmanova comes nowhere close to putting up your image on the defendant’s billboard, not so

A: That is incorrect.

Q: My lord with your kind permission if I may read Clause 1(counsel reads). I suggest to you that your obligation under your Exhibit “A” is far weightier than your obligations under any of the contracts with IPMC and therefore using Exhibit “A” as a basis to arrive at your claim of USD50, 000 is highly unreasonable.

A: I do not agree with that statement. Looking at my contract with Pharmanova Ltd and the obligation which has been clearly stated there I was an ambassador for Pharmanova. On the IPMC billboard I was being projected as the ambassador, not only that but there was unauthorised use of my image on a billboard which was not part of the contract we signed”.

[37] With the greatest respect to the Plaintiff and Counsel based on all of the evidence heard at trial including the above I cannot accept the amount of $50,000.00 without any proper proof or justifiable reason(s). Also, I do not accept the Plaintiff’s Counsel’s argument stated at page 10 of the written submission filed on May 15, 2019 that “the Defendant Company definitely profited financially from the unauthorized use of the Plaintiff’s image and also enhanced the image of their Company by using the Plaintiff as the face/Ambassador of their Company and ought to compensate her. Again, Counsel ought to be reminded that the basic rule is evidence. No evidence of the Company benefitting from the use of the image of the Plaintiff was put before the Court, to that extent the submission is speculative and same is rejected.

[38] The Plaintiff ought to know that the general rule is that where a party in a civil suit raises an issue which is essential to the success of her claim, she assumes the onus of proof, whether it is the Plaintiff who asserts a fact or the Defendant. Discharging this burden requires that a party goes beyond merely repeating the averments in his pleadings on oath and produce evidence of other facts and circumstances from which the Court can ascertain that what he claims is true. The old case of MAJOLAGBE v. LARBI [1959] GLR 190 @ 192 has long shown the path to follow and laid in clear terms what a party in an action such as the one at bar must prove on the preponderance of probabilities in order to secure a favourable verdict in his favour. See also the Court of Appeal case of FRANCE v GOLIGHTLY & ANOR [1991] 1 GLR 74, CA (holding 3).

[39] But, does the above finding mean that I should wring my hands in despair and lament that because the Plaintiff failed to establish with cogent evidence the figure of $50,000.00 as compensation endorsed on her Writ of Summons she should not be compensated for the use of her image which I have found to be unauthorized? I think equity and conscience dictate that I should not do so. It bears stressing that though this court is a court of law, it is also a court of equity. As explained by Abban JA (as he then was) in DOMFE v ADU (1984-86) 1 GLR 653 @ 666, where the judge sits as a court of law, he also sits as a court of equity and of conscience.

[40] Based on all of the evidence, I shall grant the Plaintiff an amount of $20,000.00 or the cedi equivalent as compensation. My reasons for the award is based on the fact that between May 2013 and April 2014 the Defendant paid the Plaintiff $10,000.00 for the use of her image for similar advertisement. In this case, the images were used without her authorization and in clear breach of the then existing contract between the parties. As stated above, the Defendant clearly has tried to rationalise and justify the use of the images of the Plaintiff even in Court even though the reasons are to my mind without basis. Further, on the strength of the evidence before me awarding the Plaintiff the same figure of $10,000.00 as compensation four years after the use of her image without her consent would not be justifiable. I also need to state that the Court is unable to accept the Defendant’s say so without proof that the billboards were erected for only 3 months. No evidence such as an agreement between the Defendant Company and the advertising company which mounted the billboard was put before the Court in the face of the Plaintiff’s insistence that the billboards were not pulled down as stated by Mr. Singh Hari.

[41] The last issue for my consideration is whether the Plaintiff is entitled to interest on the amount awarded as compensation, which is $20,000.00. Plaintiff’s Counsel did not justify same in his written submission to the Court and having reviewed the law, I am of the view that there is no legal justification for same. I shall therefore dismiss the Plaintiff claim for interest on the amount. To my mind the facts situation is different from the facts in such cases as UNILEVER GHANA LTD. v. KAMA HEALTH SERVICES [2013-2014] 2 SCGLR 861 where the Plaintiff/Respondent had paid money to the Defendant/Appellant which the Court reasoned that he was entitled to the money paid. This was not an outstanding debt which was due as payable.

[42] Finally, I also wish to state that I am of the respectful view that Counsel for the Defendant misconceived the law in her written submission that the Plaintiff’s claim for compensation was the same as claim for special damages. With respect, the Plaintiff’s claim for compensation based on the facts is conceptually different from special damages as submitted on. There is no point repeating here words that have there been so eloquently spoken in such cases as DELMAS AGENCY GHANA LIMITED v. FOOD DISTRIBUTORS INTERNATIONAL LIMITED [2007-2008] SCGLR 748 which was relied upon by the Defendant’s Counsel for the submission.

[43] On the issue of costs, the law is that a successful party is presumptively entitled to costs. See Order 74 of C.I. 47. To my mind, the governing principle in awarding cost is to consider the result produced and whether in all of the circumstances an award of costs is fair and reasonable. I am also of the respectful view that the costs award should reflect more of what the Court views as fair and reasonable amount that should be paid by unsuccessful party rather than any exact measure of the actual costs of the successful litigant. Applying the law and taking into consideration the conduct of the Defendant which undoubtedly delayed this matter unduly and relying on the authority of the factors under Order 74 of C.I. 47 and the Court of Appeal case of GATCO CHEMPHARAM v. PHARMADEX (Ghana) LIMITED [1999-2000] 2 GLR @262 I shall award the Plaintiff cost GH¢20,000. 00.

Accordingly ordered

 CASES REFERRED TO;

1. ABABIO v AKWASI 111 [1994-95] Ghana Bar Report, Part 11, 74

2. RE ASHALLEY BOTWE LANDS: ADJETEY AGBOSU & ORS v KOTEY & ORS [2003-04] SCGLR 420

3. TAKORADI FLOUR MILLS v. SAMIR FARIS [2005-2006] SCGLR 882

4. ASARE v ATTORNEY-GENERL [2003-2004] 2SCGLR 823

5. MAJOLAGBE v. LARBI [1959] GLR 190 @ 192

6. FRANCE v GOLIGHTLY & ANOR [1991] 1 GLR 74, CA

7. DOMFE v ADU (1984-86) 1 GLR 653 @ 666

8. UNILEVER GHANA LTD. v. KAMA HEALTH SERVICES [2013-2014] 2 SCGLR 861

9. DELMAS AGENCY GHANA LIMITED v. FOOD DISTRIBUTORS INTERNATIONAL LIMITED [2007-2008] SCGLR 748

10. GATCO CHEMPHARAM v. PHARMADEX (Ghana) LIMITED [1999-2000] 2 GLR @262