JUDGEMENT

TANKO AMADU J.A

(1)  This appeal is from the judgment of the High Court (Commercial Division) Accra, dated 11^th 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.

(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 [1991]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.

APPELLANTS’ SUBMISSION:

(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 2^nd 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”.

(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. [1975]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 2^nd 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 2^nd 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. [1965] 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;

(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” [1979] AC 210.

(34) In the instant case, once the Trial Court had arrived at a conclusion that the 2^nd 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 2^nd Respondent by their own admission. Indeed he described the 2^nd 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 2^nd 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 [1960] 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 2^nd 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.