IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL COURT),
ACCRA- A.D 2019
BRIGHT ONYINA - (Plaintiff)
MR. KWARTENG @ WAKEDI - (Defendant)
DATE: 13 TH APRIL, 2018
SUIT NO: OCC/131/15
JUDGES: ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
MARGARET MARY AGYEI-TWUM FOR PLAINTIFF
SHADRACK YEBOAH OBENG FOR CHARLES OWUSU ANSAH FOR DEFENDANT
The Plaintiff herein who describes himself as a music producer commenced the instant action against the Defendant whom he describes as a businessman who sells and produces compact disc (CDs). The original writ of summons and statement of claim were issued on 24/02/2015. With leave of the court, the Plaintiff amended his writ of summons and statement of claim on 03/06/2016 wherein he claimed the reliefs as set out below:
i. An order of the court declaring the Plaintiff as the copy- right owner of “PSALM 23; “DOCTOR A DECLARE WO”; “MONTINTIM”; and “YEHOWA BEHWEWO”.
ii. An order directing the Defendant to render account on the sale of the Albums from 2012 to date.
iii. An order of the Court restraining the Defendant, his assigns, privies, agents, servants, workmen and all those claiming through him from interfering with the production, sale, ownership and dealing with CDs the Plaintiff has the copy right to.
iv. Damages for unlawful arrest and malicious prosecution of the Plaintiff.
vi. Any further order(s) that may deem fit.
The Defendant also counterclaimed for the following reliefs:
a) A declaration that the conduct of the Plaintiff in pirating and selling his works without his knowledge, consent and concurrence is a violation and/or infringement of his copyright and same is unlawful and illegal.
b) General damages for infringing the copyright of the Defendant.
c) An order of the court directed at the Plaintiff to account to the Defendant for the number of the Defendant’s works/music pirated and sold by the Plaintiff without the knowledge, consent and concurrence of the defendant.
d) An order directed at the Plaintiff to pay to the Defendant the sum of One Ghana cedis and Fifty Pesewas (GHC 1.50p) for each work of the Defendant sold by the Plaintiff without his knowledge, consent and concurrence.
e) An order of injunction restraining the Plaintiff, his assigns, servants and workmen from producing any work of the Defendant without his knowledge, consent and concurrence and /or from infringing or further infringing the Defendant’s copyright in his works.
f) Any further order(s) as the Honourable Court may deem fit.
THE PLAINTIFF’S CASE.
The Plaintiff averred that by an agreement executed in the year 2012, a music composer by name Anthony Owusu Ansah, assigned his copyright in his music titled PSALM 23: “YEHOWA NE MEHWEFO”, to the Plaintiff for an amount of Twenty Thousand Ghana cedis (GHC 20,000.00). The Plaintiff entered into a second agreement with Osuani Afrifa who also assigned his rights in his two Albums titled “Doctor Declare Wo”, to the Plaintiff. After the execution of these two contracts, the Plaintiff said he entered into an oral agreement with the Defendant to sponsor the production of the music for the parties to sell. Per the practice in the Music Industry, the Plaintiff asserted that whenever someone sent musical works which are not his own for sale, the producer prints out the list of the items and a way bill to the person who sells the items.
Thus, after the first production of PSALM 23 for sale, the Plaintiff contended that he sold the same and delivered the entire proceeds to the Defendant. In his absence, the Plaintiff alleged that the Defendant produced several copies of the albums and sold same without his consent and also failed to give him his share of the proceeds. It is the case of the Plaintiff that the Defendant caused his arrest and at the Zongo police station, he was warned not to deal with the music he had produced even though he had exclusive rights to the Albums. The Plaintiff also alleged that the Defendant has replaced his photograph on the CD with the picture of a child as well as the Defendant’s own phone number through which customers can reach him; that the Defendant has produced about five million ( 5 million) copies of the PSALM 23, “Doctor declare wo” and “Montimtim” album without his consent and has been using the police to harass him and has perpetrated fraud on him. Currently, the Plaintiff says he is standing trial at the Circuit Court, KMA, Kumasi, on the complaints of the Defendant.
THE DEFENDANT’S CASE.
The Defendant denied the Plaintiff’s claims to the copyrights in issue. His position is that he engaged the Plaintiff as a salesman on commission basis and even purchased a Kia Pregio vehicle which the Plaintiff was to use for the sales of Defendant’s products. The Defendant said he negotiated with his relative, Anthony Owusu Ansah, who owned the PSALM 23 Album; Osuani Katakyie Afrifa, owner of ‘Montintim and Doctor A declare Wo albums; and one Agyare, owner of ‘Adom bi Apue album, to acquire their rights for a period of two years. As a result of this agreement, the Defendant said he paid Anthony Owusu Ansah and Agyare GHC 2000.00 each and paid Osuani Katakyie Afrifa GHC 3,000.00. Later, the Defendant said he received a telephone call from Osuani Katakyie Afrifa that he should come for a deed of assignment to be signed because he was travelling outside the country. The Defendant alleged that due to a medical challenge, he agreed that the Plaintiff should execute the deed of assignment on his behalf and keep copies in the Defendant’s shop. After recovering from his ailment, the Defendant stated that he went to the shop and upon a perusal of the agreements, he noticed that the Plaintiff had rather used his name as the assignee.
His immediate reaction was to have the documents rectified, but he stated that Osuani Katakyie Afrifa and Anthony Owusu Ansah told him that since there were witnesses to the fact that the Defendant was the Assignee, there was no need to incur further expenditure in preparing fresh documents. He therefore abandoned the idea of rectification and commenced the production of the Albums. For a start, the Defendant said he produced and gave to the Plaintiff three thousand (3000) copies of the PSALM 23 album and One Thousand (1000) copies of ‘Adom bi apue’ album at a price of Two cedis Fifty pesewas per compact disc (CD). Due to previous experiences, the Defendant said he decided to put the Plaintiff’s name on the CDS as the executive producer, but he maintained his security feature, “Y.D.K.” on the CD itself. As customary successor of the late Anthony Owusu Ansah, the Defendant alleged that he is the registered copyright holder of all the copyright works of the said Anthony Owusu Ansah, but the Plaintiff has pirated and sold thousands of his copyright works which led to the Plaintiff’s arrest and trial. The Defendant also pleaded fraud with the particulars that the Plaintiff replaced his name with that of the Defendant in the deed of assignment or contract with Osuani Katakyie Afrifa and Anthony Owusu Ansah as assignee knowing same to be false.
ISSUES FOR TRIAL
After an abortive pre-trial settlement conference, the issues agreed to be tried and which must now be determined are these:
1. Whether or not the Plaintiff is the copyright owner of “PSALM 23”, “DOCTOR A DECLARE WO”, “MONTINTIM” and “YEHOWA NE ME HWEFO?
2. Whether or not the parties entered into a verbal agreement for the Defendant to sponsor the Plaintiff’s assigned works?
3. Whether or not the Defendant sold over one million copies of the Plaintiff’s assigned works without going into accounts with him?
4. Whether or not the Defendant caused the arrest of the Plaintiff on the charges of pirating?
5. Whether or not the Defendant has defrauded the Plaintiff and vice versa?
6. Whether or not the Defendant engaged the Plaintiff as a commissioned sale person in the year 2012?
7. Whether or not the Defendant is a registered copyright holder of the works of Anthony Owusu Ansah including “ADOM BI APUE”, as Customary Successor?
8. Whether or not the Plaintiff has produced and sold copyright works of the Defendant including “PSALM 23”, “ADOM BI APUE”, “DOCTOR A DECLARE WO” and “MONTIMTIM” without the consent and authorization of the defendant?
9. Whether or not the Plaintiff is entitled to his claims?
10. Whether or not the Defendant is entitled to his counterclaim?
THE BURDEN OF PROOF.
The burden of proof in civil suits lie on the party alleging a fact which has been denied by his opponent. The person who makes those positive assertions must prove on the preponderance of the probabilities that the existence of the fact is more probable than its non-existence. The phrase “preponderance of probabilities” has been statutorily defined in section 12(2) of the Evidence Act, 1975 NRCD 323 as,
That degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence.
Ollenu J (as he then was) in the case of Majolagbe v. Larbi (1959) GLR 190, relying on his earlier
judgment in Khoury & Anor v. Richter, (Unreported) High Court (Lands Division), 8th December 1958 said this on the question of proof in civil suits:
Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way ,eg, by producing documents, description of things, reference to other facts, instances, or circumstances, and his averment is denied, he does not prove it by merely going into the witness-box and repeating that averment on oath, or having it repeated on oath by his witnesses. He proves it by producing other evidence of facts and circumstances, from which the Court can be satisfied that what he avers is true.
This principle of proof was further expounded by Kpegah JA (as he then was) in the case of Zabrama V Segbedzie (1991) 2 GLR 221 thus:
The correct proposition is that, a person who makes an averment or assertion, which is denied by his opponent, has the burden to establish that his averment or assertion is true. And he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of that burden.
The Supreme Court in Ackah v. Pergah Transport Ltd & Ors (2010) SCGLR 728 at 736 also stated the law lucidly as follows:
It is a basic principle of the law of evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim must fail.
See also Takoradi Floor Mills v Samir Faris (2005/06) SCGLR 882; Yaa Kwesi v Arhin Davis (2007/08)
SCGLR 580; Sarkodie v FKA Co. Ltd. (2009) SCGLR 65 holding 1 and Abbey v Antwi (2010) SCGLR 17 at 19 (holding 2). The issues enumerated above will not be resolved in a chronological order as some overlap.
WHETHER OR NOT THE PLAINTIFF IS THE COPYRIGHT OWNER OF “PSALM 23”, “DOCTOR A DECLARE WO”, “MONTINTIM” AND “YEHOWA NE ME HWEFO.
Now, the Plaintiff herein filed his suit on 24/02/2015 and his first relief is for a declaration that he is “the copy right owner of “PSALM 23; “DOCTOR A DECLARE WO”; “MONTINTIM”; and “YEHOWA BEHWEWO”. The onus of proof of this issue, as the above authorities have clearly shown, rest on the Plaintiff. He led oral evidence and called two witnesses. The oral evidence of the Plaintiff is to the effect that on 20/02/2012, he entered into two agreements with Anthony Owusu Ansah and Osuani Katakyie Afrifa for the assignment of the copyrights in their musical works to him. Thereafter, he entered into an oral contract with the Defendant herein for the Defendant to sponsor the production of the music which he, the Plaintiff, was to market. He added that the Defendant even provided a vehicle to enable him market the first copies of the music that were produced, he sold same and gave all the proceeds to the Defendant, and under cross-examination, the Plaintiff explained that he gave all the proceeds to the Defendant who financed the production because he had indicated to him that he needed the money to make certain payments. The Plaintiff tendered the two contracts as exhibits ‘A’ and ‘C’. Since these contracts are very crucial, they will be reproduced for emphasis. Exhibit ‘A’ states:
ASSIGNMENT OF MUSIC TRACK AGREEMENTS.
THIS AGREMENT IS MADE ON THE 2OTH OF FEBRUARY, 2012 BETWEEN ANTHONY OWUSU ANSAH OF HOUSE NUMBER 35 ANTOA-ASHANTI REGION OF THE REPUBLIC OF GHANA (hereinafter called the ‘Author” of assigner”) on the first part AND BRIGHT ONYINA of P.O. Box 5034, Akorem, Kumasi Ashanti (hereinafter called “the assignee or buyer”) of BRIGHTONA MUSIC PRODUCTION, ROMAN HILL, KUMASI OF THE OTHER PART.
THE PARTIES HAVE HEREBY AGREED AS FOLLOWS:
That the Author or owner of music Tracks entitled ‘Psalm 23’ has assigned the said to PRODUCER BRIGHT ONYINA to reproduce the track of music into Audio Cassette and CDs for the period of Two(2) years at the cost of TWO THOUSAND GHANA CEDIS (GHC 2,000.00) starting from 1st May, 2012 to 1st May, 2014.
That the Assignor has no right to reproduce any music from the said Track whatsoever within the period of two (2) years. That, failure to comply with this agreement may lead to the commencement of a legal action when the assignor decides to sell it to another person within the period of two years, and the assignee shall not sell the said tracks after the period of two years unless the agreement has been renewed.
DATED IN KUMASI THIS 2OTH DAY OF FEBRUARY, 2012
PRODUCER/ASSIGNEE MUSIC OWNER/ASSIGNOR
(BRIGHT ONYINA) (ANTHONY OWUSU-ANSAH)
OSUANI KATAKYIE AFRIFA OSEI KWAME
PATRICIA OWUSU ANSAH AKUA SARPOMAA.
Exibit A also bears the stamp of the Regional Administrator, Copyright Administration, Kumasi. The name underneath can be faintly read as Odame Darkwa.
Exhibit ‘C’ also states:
SALES OF MUSIC TRACT AGREEMENT.
This Agreement is made and entered between OSUANI KATAKYIE AFRIFA of P.O. Box 14, Old Tafo, Kumasi (hereinafter called the MUSIC OWNER/MUSICIAN) on the First part and BRIGHT ONYINA of BRIGHTONA PRODUCTION (MUSIC) ROMAN HILL, Kumasi (hereinafter called BUYER OF THE MUSIC TRACTS ENTITLED “DOCTOR DECLARE WO” contains fourteen(14) songs namely listed below:
1. GYINA PINTIN 8. AWURADI BEYE
2. DOCTOR ADECLARE WO 9. MEMPA ABA
3. MEDE MANO BEPAI , 10.MONTIMTIM (CALIP)
4. AWURADI AYI ME HAW 11.EMU WOHO ABOMFIA
5. SUNSUM KRONKRON 12.KAKYEWON
6. PENTECOST OGYA 13.OBI DEKYEN WODIEY
7. MONTINTIM (HIP) 14. ADEKYE NSROMA
15. WORSHIP owned by the said MUSICIAN on the other part, both parties have agreed as follows:-
NOW IT IS HEREBY AGREED AS FOLLOWS:-
That the owner of MUSIC TRACTS above-said has released the aid music tracts to PRODUCER-BRIGHT ONYINA to reproduce the said tracts into Audio Cassettes and CDs for the period of Two years at the full cost of GHC (2)3,000.00 (Three (two) Thousand Ghana Cedis) starting from 1st April, 2012 to 1st April, 2014.
The seller has no right to reproduce any music from the said Tracts whatsoever within the period of two (2) years. Failure to comply with this directive shall attract legal action.
DATED IN KUMASI THIS 20TH DAY OF FEBRUARY, 2012.
SGD. REPRODUCER/BUYER MUSIC OWNER/SELLER
(BRIGHT ONYINA) (OSUANI KATAKYIE AFRIFA)
WOFA YAW AMO A. AGYEI
PREPARED BY REV.CALEB ACHEAMPONG
COMMISSONER FOR OATHS
P.O. BOX 11333
The said Commissioner of Oaths testified for the Plaintiff, and per his evidence, the parties to exhibit ‘C’ appeared before him voluntarily, gave him the information and the contents are the true reflection of the instructions given to him to prepare the document. The Defendant has denied the Plaintiff’s evidence in respect of these contracts, his version of the events was that when it was time to reduce the oral agreement he had made with the music owners into writing, he was ill and therefore directed one of his employees to give money to the Plaintiff to cause the agreement to be prepared and executed on his behalf. Therefore, exhibits ‘A’ and ‘C’ do not reflect the true intentions of the parties. For the Plaintiff, counsel argued that where a transaction has been reduced into writing by parties to an agreement, extrinsic evidence is in general inadmissible to contradict, vary, add to or subtract from the terms of the document. In this case, counsel submitted that the Defendant wants to introduce extrinsic evidence to vary the unambiguous written agreements executed between the Plaintiff and Anthony Owusu Ansah and Osuani Katakyie Afrifa respectively. Counsel urged the court to hold the parties to the written agreements.
Continuing, counsel submitted that the actual commencement of the Agreement was 1st May 2012 to 1st May, 2014 and not the date stated in the contracts. She supported this argument with a reference to Anson’s law of Contract 28th ed. page 521 that:
A simple contract whether in writing or not may be varied by a subsequent Agreement either written or oral. This in no way conflicts with the rule that extrinsic evidence is not admissible to vary or add to the contents of a written document. For that principle merely refers to the ascertainment of the original intentions of the parties.
The above position of the law referenced by counsel for the Plaintiff envisages a Novation of the contract, where by a subsequent agreement between the parties, the original contract is treated as discharged and new obligations arise from the new agreement. It is very strange for counsel to argue in one breath that the parties should be held to the contract as it is, then turn round to invite the court to consider some sort of oral agreement which subsequently varied the commencement date in one of the agreements.
For the Defendant, counsel relied on sections 1(c), 5, 6(a) and 9(1) of the Copyright Act 2005, Act 690 which state that:
1. Work eligible for copyright
(1) An author, co-author or joint author of any of the following works is entitled to the copyright and protection afforded to that work under this Act,…
(c) musical work,
5. Economic rights of authors
The author of a protected copyright work has the exclusive economic right in respect of the work to do or authorize the doing of any of the following:
(a) the reproduction of the work in any manner or form,
(b) the translation, adaptation, arrangement or any other transformation of the work,
(c) the public performance, broadcasting or communication of the work to the public,
(d) the distribution to the public of originals or copies of the work by way of first sales or any other first transfer of ownership, and
(e) the commercial rental to the public of originals or copies of the work.
6. Moral rights of authors
In addition to the economic rights referred to in section 5, the author of protected copyright work has the sole moral right
(a) to claim authorship of the work and in particular to demand that the name or pseudonym of the author be mentioned when any of the acts referred to in section 5 are done in relation to the work, and
(b) to object to and seek relief in connection with a distortion, mutilation or any other modification of the work where that act would be or is prejudicial to the reputation of the author or where the work is discredited by the act.
9. Transfer of copyright
(1) The owner of copyright may transfer the economic rights in section 5 to another person in whole or in part but the transfer whether in whole or in part shall not include the moral rights referred to in section 6.
(2) A contract which requires the total transfer of the rights referred to in section 6 shall be limited in scope to the use provided for in that contract.
(3) Copyright may be transferred by assignment, testamentary disposition or operation of law.
(4) An assignment of copyright shall be in writing and signed by the owner of the copyright or by the person authorized by the owner of the copyright for the purpose.
The argument by counsel for the Defendant on this issue is that the musical works in issue are subject to copyright protection. Correspondences from the copyright office brought to the notice of this court confirms that the musical works in issue are protected by copyright. The said copyright is however vested in the author who enjoys the rights stated, in particular, for the first transfer of ownership under section 5(d) and to claim ownership of the work under section 6(1). Counsel argued that the Author is allowed to transfer only his economic rights under section 5, but not the moral rights under section 6. And, it is by such transfer that a person other than an author can become the owner of the copyright. He then refers to the interpretation section, section 76 of Act 690, which defines owner as the person to whom the copyright in a work belongs and includes the heir of an author or an assignee in whole or in part of a copyright.
Moving on, counsel submitted that for the Plaintiff to succeed in his relief to declare him as the copyright owner of the musical works in issue, he must prove that, as at the time of his writ of summons or at the time that the court is to make this declaration, he is either the author, heir of an author or an assignee in whole or in part of a copyright. In the present case, counsel argued that the Plaintiff’s exhibits ‘A’ and ‘C’ on which he basis his declaratory relief had long expired before the commencement of the action. Thus, even if the Plaintiff was an assignee, which is denied, the assignment had expired prior to the commencement of this suit. So, the copyright in the work had reverted to the authors, namely Anthony Owusu Ansah and Osuani Katakyie Afrifa respectively, in the absence of any other agreement.
The argument by counsel for the Plaintiff that there was a subsequent oral agreement which varied the commencement date is untenable. Similarly, the Defendant’s argument, supported by his counsel’s submissions, that the Plaintiff’s name on exhibits ‘A’ and ‘C’ as the assignee was not what the parties intended is doubtful. It may well be that the Defendant was unwell at the time exhibits ‘A’ and ‘C’ were prepared. The Defendant did not deny the Plaintiff’s assertion that he lives at Sawaba, a suburb of Kumasi. The Defendant in his evidence-in-chief also said he resides at Ahinsan estate Kumasi. According to the Defendant and his witnesses, when exhibit ‘A’ was prepared in Kumasi, it was sent to Antoa for the same to be executed by Anthony Owusu Ansah who was critically ill. And, the said Anthony Owusu Ansah, who is a brother of the Defendant, entered the agreement so that his own brother will give him the money involved for treatment.
Apart from Anthony Owusu Ansah (now deceased), the Defendant’s biological mother also executed the agreement in Antoa when the same was dispatched in the Defendant’s private vehicle to Antoa. So, if the document could be sent to Antoa for the Defendant’s relatives and /or persons who had health challenges to sign, what prevented the Defendant from requesting that the document be prepared and brought to him in Ahinsan Estate, Kumasi for him to peruse and execute the same? There has been no evidence to the effect that the Defendant was so incapacitated that he could not use his hand to sign or make a mark had the document been sent to him at home. At least, the evidence shows that he could talk, give directions as to what was to be done, among others. The Defendant’s version of the events leading to the preparation and execution of the agreements is equally shrouded in doubt, to say the least.
More importantly, the Defendant discovered what he termed “errors” on the document within a reasonable time after the same had been executed and kept in his shop, according to him. His reason for not rectifying the error is that Osuani said there were witnesses to the agreement who could attest that the real assignee was the Defendant, but not the Plaintiff so there was no need to expend money in preparing a fresh agreement. Strangely, the said Osuani Katakyie Afrifa signed as a witness for the Plaintiff in the Anthony Owusu Ansah agreement, exhibit ‘A’. So, the defendant allowed the contracts to stand in their present form. This poses a serious legal problem.
Japan Motors Trading Co. Ltd. V. Randolph Motors Ltd (1982-83) GLR 536, though decided on different facts, contain reasoning which will guide this court. That case related to a contract said to have been induced by fraudulent misrepresentation. Abban J (as he then was) stated:
(2) Where a purchaser had been induced to buy property by the vendor’s fraudulent misrepresentation, the purchaser had two courses or options opened to him; he might abide by the contract and then bring action to recover damages he had sustained due to the fraud; or he might rescind the contract, return the property, if already accepted, and recover the purchase price if already paid by action after demand and refusal. The principle was that a contract induced by fraud was not void but only voidable at the election of the party defrauded and when once the party defrauded had elected to abide by the contract, being aware of the fraud, he could not afterwards have it rescinded. The undue delay and the unequivocal acts on the part of the Defendants undoubtedly showed that the Defendants elected to abide by the agreement despite the so-called fraudulent misrepresentation and they were bound by their election. With full knowledge of the alleged fraud, the Defendants chose to abide by the contract. They could not when it suited their convenience retract it, reprobate it, and go back on their own liability. Thus even if fraudulent misrepresentation had been proved, the conduct of the Defendants would have warranted a refusal of an order to have the contract rescinded.
Applying the above reasoning to the instant case, the Defendant herein as well as DW1, Osuani Katakyie Afrifa were aware of the so called misrepresentation in both agreements if their evidence is anything to go by. Yet, they did nothing about it and allowed the production to go on. It is too late in the day for the Defendant and his witnesses to prevail on the court that exhibits ‘A’ and ‘C’ do not reflect the actual intention of the parties. When the Defendant became aware, he stood by and did not exercise his legal rights to have the contract set aside, productions were made based on that contract. That apart, the law is that where the oral evidence of parties are conflicting, the court should lean favourably towards a written document, if one exists, unless there are genuine reasons not to believe the same.
Thus, in Nsiah v Attuahene (1992-93) 2 GBR 897, CA the court held (holding 3):
Where there was documentary evidence over a transaction, the practice was to consider both the oral and documentary evidence but often to lean favourably towards the documentary evidence, especially when the documentary evidence was found to be authentic while the oral evidence is conflicting.
This principle was followed in Duah v. Yorkwa (1993-94) 1 GLR 217, CA. The Court observed the demeanor of Osuani Katakyie Afrifa as he testified. It cannot be said that he is a stack illiterate in English language and did not appreciate the documents he executed, both as a party and as a witness and so he cannot rely on the Illiterates protection Act as a sword. In any case, the presence or absence of a jurat on the agreements is not conclusive of the fact that the parties understood the content. Kpegah JA (as he then was) expatiated on this in Zabrama v Segbedzie, referred to supra in holding two.
The principle was firmly established by a stream of decided cases that where an illiterate executed a document which compromised his interest and that document was being cited against him by a party to it or his privy, there was no presumption in favour of the proponent of the document, and against the illiterate person, that the latter appreciated and had an intelligent knowledge of the contents of the document. The party seeking to rely on the document must lead evidence in proof that the document was actually read and interpreted to the illiterate who understood it before signing same. Being a question of fact, the presence or otherwise of an interpretation clause on a document was one of the factors a court should take into account in determining whether the document in question was fully understood by the illiterate.
The presence of an interpretation clause in a document was not conclusive of that fact, neither was it a sine qua non. It was still possible for an illiterate to lead evidence outside the document to show that despite the said interpretation clause, he was not made fully aware of the contents of the document to which he made his mark. If a court, after assessing all the available evidence was satisfied, upon the preponderance of the evidence, that the document was read and interpreted to the illiterate person, then the burden of proof would have been discharged by the person relying on the document. That was because just as it was bad to hold an illiterate to a bargain he would otherwise not have entered into if he fully appreciated it, so also was it equally bad to permit a person to avoid a bargain properly and voluntarily entered into by him under the guise of illiteracy."
See also Duodo & Ors v Adomako & Adomako ( 2012) 1 SCGLR 198; In Re Will of Bremansu; Akonu- Baffoe v Buaku & Vandyke ( substituted by ) Bremansu (2012) 2 SCGLR 1313 which adequately discussed the legal effect of the absence or presence of a jurat on a document and came to the same conclusion as Kpegah JA did in the Zambrama case.
In the present case, the court, after considering all the surrounding circumstances, comes to a conclusion that the parties to the contracts understood the same even though there is no interpretation clause on any of the contracts.
Anthony Owusu Ansah who was a party to the agreement is deceased. And, I have cautioned myself as regards the document he executed. If he were alive, his version would have been heard and the truth would have prevailed. Unfortunately, he is not alive to speak to the content of the document he executed. The Defendant may have provided money for the medical treatment of his biological brother, Anthony Owusu Ansah, which is not unusual, but the court is not convinced that the parting of the money has any bearing on the Plaintiff’s agreement with the late Anthony Owusu Ansah. On the preponderance of the evidence, the court finds that exhibits ‘A’ and ‘C’ are contracts voluntarily executed by the parties thereto and there is no good reason to accept any extrinsic evidence to vary the same. However, the court accepts the submissions by counsel for the Defendant, based on the Plaintiff’s own admissions during cross-examination, that at the time the Plaintiff commenced his action on 24/02/2015, the copyrights in the musical works in issue assigned to him by Anthony Owusu Ansah (now deceased) and Osuani Katakyie Afrifa had expired on 01/05/2014 and 01/04/2014 respectively. Therefore, the Plaintiff’s claim that he is a copy right owner has no basis in law. He is certainly not entitled to a declaratory relief for a musical right which he does not have or own.
WHETHER OR NOT THE DEFENDANT IS A REGISTERED COPYRIGHT HOLDER OF THE WORKS OF ANTHONY OWUSU ANSAH INCLUDING “ADOM BI APUE, AS CUSTOMARY SUCCESSOR.
The Defendant testified that after the death of Anthony Owusu Ansah, he was appointed as customary successor by his family, and the Copyright office as well as Ghana Music Rights Association (GHAMRO), have recognized him as the registered copyright owner of the works of the late Anthony Owusu Ansah. According to the Defendant, he has been receiving royalties from GHAMRO for some years now. He tendered in evidence a Statutory Declaration wherein his family has declared him as the customary successor, and letters from the Copyright Office and GHAMRO, exhibits 9, 9A and 9B. Counsel for the Defendant has also submitted that per section 9(3) of the Copyright Act, 2005, Act 690, a copyright may be transferred by assignment, testamentary disposition or operation of law. And, upon the death of Anthony Owusu Ansah, the copyright in the deceased’s Psalm 23 has been transferred to the Defendant as customary successor with the consent of the family, and confirmed by the Copyright Office. For the Plaintiff, counsel argued that on the authority of Okyere (deceased) (substituted by Peprah) v. Appenteng & Adomaa (2012)1 SCGLR 65; and also Kusi & Kusi v. Bonsu (2010) SCGLR 60, since the Defendant has not applied for and obtained letters of Administration in respect of his deceased brother’s estate, he cannot claim to be the copyright owner of the works of Anthony Owusu Ansah.
Upon a perusal of the Statutory Declaration, exhibit 9B, the court notes that the declarant therein is Wycliff I.D. Kwarteng, who is the Defendant in this case. One Wofa Kofi Fofie, Akua Sarpomaa and Akwasi Owusu-Ansah also executed the Statutory Declaration, which is superfluous because they are not declarants. Their signatures or marks on the Statutory Declaration of the Defendant herein is of no legal consequence.
Exhibit 9, which emanated from the copyright office in Kumasi, merely acknowledged receipt of the Statutory Declaration, exhibit 9B, which the Defendant had deposited at the copyright office claiming succession to the musical works of Anthony Owusu Ansah (deceased).
Exhibit 10, also emanated from the GHAMRO office, it also acknowledged receipt of the Statutory Declaration made by the Defendant herein and based on which the GHAMRO office has been paying accruing royalties to the Defendant herein.
The copyright owner of the musical work of Anthony Owusu Ansah after his demise can be ascertained from sections 12 and 18 of Act 690 thus:
12. Duration of copyright in works of individuals
(1) The rights of the author referred to in section 5 are protected during the life of the author and seventy years after the death of the author unless the contrary is stated in this Act.
(2) Where a work is jointly authored, the rights of the author referred to in section 5 are protected during the life of the last surviving author and seventy years after the death of that author.
18. Duration of moral rights
The moral rights of authors under section 6 exist in perpetuity and these rights are enforceable by the author, during the lifetime of the author, and after the author’s death, by the author’s successors whether or not the economic rights vested in the author under section 5 are still vested in the author or the successor in title of the author.
Going back to the submission of counsel for the Defendant that a copyright can be transferred by operation of law under section 9(3) of Act 690, is it the law that immediately a person is appointed as Customary Successor, he automatically becomes the copy right owner of a deceased person’s protected works? So long as the rights are protected for seventy years after the death of the author or copyright owner, by operation of law, it is the beneficiaries of the deceased who are entitled to the economic rights, and not the Customary Successor. But, to enjoy these rights, Letters of Administration must first be obtained after which the administrators will vest the rights in the beneficiaries of the intestate. Order 66 rule 13 of the High Court (Civil Procedure) Rules 2004, C.I. 47 gives the order of priority of grant of Letters of Administration when a person dies intestate after the enactment of P.N.D.C.L. 111. Anthony Owusu Ansah whose rights are in issue died intestate in the year 2013 per the evidence before this court. Therefore, PNDCL 111 is applicable to his self- acquired properties, which includes his musical works.
The order of priority is as follows:
Where a person dies intestate on or after 14th June, 1985, the persons who have beneficial interest in the estate of the deceased shall be entitled to a grant of letters of administration in the following order of priority
(a) any surviving spouse;
(b) any surviving children;
(c) any surviving parents:
(d) the customary successor of the deceased
Thus, a Customary Successor cannot bypass a surviving spouse, children or parents in obtaining Letters of Administration. The order of priority is to be respected, except where the deceased had no wife, child or parent as the case may be. Under the Administration of Estates Act, 1961, Act 63:
(1) The movable and immovable property of a deceased person shall devolve on the personal representatives of the deceased person with effect from the date of death.
(2) In the absence of an executor the estate shall, until a personal representative is appointed, vest
(a) in the successor, if the entire estate devolves under customary law, or
(b) in the Chief Justice, in any other case.
2. Status of personal representatives
(1) The personal representatives are the representatives of the deceased person with regard to the movable and immovable property of the deceased person.
(2) The personal representatives for the time being of a deceased person are in law the heirs and assigns of the deceased person within the meaning of the trusts and powers.
From the foregoing, the Defendant, as Customary Successor, cannot enjoy the economic rights in the works of Anthony Owusu Ansah in perpetuity. He only holds the works of Anthony Owusu Ansah in trust for his beneficiaries.
Per the evidence before this Court, the persons with beneficial interest in the estate of Anthony Owusu Ansah have not applied for and obtained Letters of Administration. It was therefore wrong for the Copyright office and GHAMRO to merely act on the self - serving Statutory Declaration of the Defendant herein as Customary Successor and to treat him as the “registered copyright owner” of the musical works of Anthony Owusu Ansah (deceased), and to pay accruing royalties to him as well. The Defendant as Customary Successor cannot by operation of law be the registered copyright holder of the works of Anthony Owusu Ansah. He is only a trustee for the beneficiaries, until letters of Administration are obtained and the economic rights vested in the beneficiaries in accordance with PNDCL 111. As trustee of the works of Anthony Owusu Ansah, the Defendant will have to even render accounts to the beneficiaries of the estate in accordance with PNDCL 111. From all indications, the beneficiaries are ignorant of their rights.
WHETHER OR NOT THE PARTIES ENTERED INTO A VERBAL AGREEMENT FOR THE DEFENDNAT TO SPONSOR THE PLAINTIFF’S ASSIGNED WORKS.
From the evidence adduced by the Plaintiff, it was the Defendant who sponsored the production of the first 1000 copies of Psalm 23, bought a vehicle for him to distribute the same and the entire proceeds were given to the Defendant. Per the evidence of the Defendant, he had earlier on engaged the Plaintiff as a sales commission worker. This was confirmed by the witnesses called by the Defendant. With the finding of this court that the said musical work was indeed assigned to the Plaintiff, and given the financial inputs made by the Defendant, it is reasonable to infer that for the two years of the assignment which expired in 2014, there was an oral arrangement between the parties to this suit for the production and marketing of the Psalm 23 CDs and other music in issue. The court therefore concludes that the Plaintiff was first employed by the Defendant to work on commission basis in the early part of the year 2012 before the assignments evidenced by exhibits A and C as well as the subsequent oral agreement were made. Issue 6 has been resolved by these findings.
WHETHER OR NOT THE PLAINTIFF HAS PRODUCED AND SOLD COPYRIGHT WORKS OF THE DEFENDANT INCLUDING PSALM 23, ADOM BI AUE, DOCTOR ADECLARE WO AND MONTIMTIM WITHOUT THE CONSENT AND AUTHORIZATION OF THE DEFENDANT.
The Defendant led evidence to show that on at least two occasions when the Plaintiff was arrested, he was selling some pirated works of the Defendant including “PSALM 23”, “ADOM BI APUE”, “DOCTOR ADECLARE WO” and “MONTIMTIM” without the consent and authorization of the Defendant. This court has found that the works in issue were indeed assigned to the Plaintiff by Anthony Owusu Ansah and Osuani Katakyie Afrifa for a period of two years and so the question of the Plaintiff pirating these works for the duration of the assignment does not arise. The exact terms of the oral agreement for the production and marketing of those works have not been made known to this court. The Defendant has not introduced any cogent evidence to show that under the oral agreement between him and the Plaintiff, the defendant had the sole exclusive right to produce the said works during those two years. On this issue, the Defendant has not made a sufficient case so as to shift the evidentiary burden onto the Plaintiff and to merit a ruling on this point in his favour.
WHETHER OR NOT THE DEFENDANT SOLD OVER A MILLION COPIES OF THE PLAINTIFF’S ASSIGNED WORKS WITHOUT GOING INTO ACCOUNTS WITH HIM?
The court has considered the entire evidence on record, there is no credible evidence from either the Plaintiff or his witnesses that the Defendant produced over a million copies of the musical works assigned to the Plaintiff without rendering accounts to him. It appears the parties are stating arbitrary figures without any concrete proof. Both parties have not also been candid to the court as regards the actual numbers produced, apart from the initial 1000 copies of Psalm 23 which were given to the Plaintiff at GHC 2.50p. As to how much the Plaintiff sold the products, and the profits he made, the evidence does not show. It is not the duty of this court to go on a voyage of discovery to find the number of CDs produced and how profits were to be shared. If indeed one million copies had been produced, there would have been witnesses and documentary proof of the same. This oral evidence of the Plaintiff lacks credibility and the court cannot rely on the same.
WHETHER OR NOT THE DEFENDANT HAS DEFRAUDED THE PLAINTIFF AND VICE VERSA.
The law is that fraud must be specifically pleaded and particularized. Both parties have done so in their respective pleadings. In Kangberee v. Mohammed (2012) 51 GMJ 173 at 179, Dotse JSC stated that:
for anyone to succeed with a serious allegation like fraud which has the tendency to vitiate acts done regularly, the particulars which must be pleaded, must also be proven.
In the dictionary of Law by LB Curzen, 5th ed. 1998, page 162, Fraud at common law is defined as:
Intentional deceit. A false representation by the Defendant of an existing fact, made knowingly, or without belief in its truth, or recklessly, careless whether it be true or false, with the intention that the Plaintiff should act on it, and which results in damage to the Plaintiff.
When fraud is proved, it unravels everything as was discussed in Midland Bank Trust v. Green (1981) AC 513.
As Counsel for the Defendant rightly submitted, quoting Osei Ansong & Anor v. Ghana Airports Company Ltd Civil Appeal No. J4/24/2012 dated 23RD January, 2013, fraud is not fraud merely because it has been so stated in a writ to excite the feelings of the courts. In effect, fraud must be shown to exist and proved accordingly. Put differently, the court cannot find that there is fraud when the circumstances show that fraud does not exist at all.
The particulars of fraud given by the Plaintiff in paragraph 12 of his amended statement of claim are:
a) The Defendant produced and sold copies of Albums which the plaintiff has exclusive rights to produce and sell.
b) The Defendant has refused to declare profit of the business the parties engaged in.
On the facts of this case, counsel for the Defendant submitted that the first particulars stated by Plaintiff, even if proved, would amount to Copyright infringement and not fraud. And, the second particulars would also lie in action for accounts and not a case of fraud. Counsel for the Plaintiff did not make any submission on the issue of fraud. The court, after considering the evidence before it, came to an earlier conclusion that the Plaintiff herein has failed to prove that the Defendant has in fact produced over a million copies of the works assigned to him exclusively without accounting to him. These are facts capable of positive proof, and the court cannot rely on the bare assertions of the Plaintiff to rule in his favour. That apart, the court agrees with the submissions of counsel for the Defendant, that even if the Plaintiff had been able to establish those particulars, his cause of action would have been a copyright infringement, and not an act of fraud. Again, refusing to account for profit does not amount to fraud and I so find. With these findings and conclusions, the particulars of fraud given in paragraph 12 (a) and (b) of the Plaintiff’s statement of claim are not sustainable.
The Defendant also particularized his allegation of fraud in paragraph 32 of his statement of defence as:
The Plaintiff replacing his name with that of Defendant in the deed of assignment or contract with Osuani Katakyie Afrifa and Anthony Owusu Ansah as assignee knowing same to be false.
After weighing the evidence adduced by the Defendant and his witnesses, with emphasis on the evidence of Osuani Katakyie Afrifa and Rev. Caleb Acheampong, the Commissioner for Oaths, the court came to the conclusion that the Plaintiff was the intended assignee of the musical works and not the Defendant. One question which has been lingering in my mind is how the Defendant at a point in time would insist on an agreement before parting with a meagre GHC 2000.00 for medical treatment of his brother who was at the point of death, and then turn round to claim economic rights of the late brother’s musical works which are protected for 70 years after his death. That seems so hypocritical, contrary to good conscience and makes the purported oral arrangement between the Defendant and his late brother suspicious as already indicated. Moreover, the Defendant’s act in permitting the Plaintiff’s name and details to be printed on the CDS as the executive producer, when the Plaintiff was not in fact the executive producer amounted to a deception. And, after deceiving the whole world to believe in non-existent facts, the Defendant now turns round to imagine fraud at his convenience? In short, the court does not see any fraud, but a case of a family member trying to cash in on the protected works of his deceased brother. May his soul rest in peace!
WHETHER OR NOT THE DEFENDANT CAUSED THE ARREST OF THE PLAINTIFF ON THE CHARGES OF PIRATING.
The Plaintiff pleaded in paragraph 17 of his amended statement of claim that:
…he is currently standing trial at the circuit court Kumasi KMA on the complaints of the Defendant.
This averment was not denied by the Defendant who also asserted in paragraphs 28 and 29 of his statement of defence as follows:
28. The Defendant states that, through his investigations and with the assistance of one Ayitey, he was able to confirm that, the Plaintiff was still pirating his works whereupon the Plaintiff was tracked and arrested at Aputuogya with pirated copies of the Defendant’s works at Aputuogya, near Kumasi.
29. The Defendants states that, the Plaintiff is currently standing trial for copyright infringement and that the present suit is only an attempt to frustrate the said prosecution.
The fact of the arrest and prosecution of the Defendant is therefore not in dispute and should not have been set down as an issue for trial.
WHETHER OR NOT THE PLAINTIFF IS ENTITLED TO HIS CLAIMS.
The Court has already found that as at 24/02/2015 when the Plaintiff instituted the present action against the Defendant, he had no assigned rights in the works of either Anthony Owusu Ansah or Osuani Katakyie Afrifa. The Plaintiff also failed to introduce any credible and cogent evidence that the CDs produced by the Defendant under their oral agreement during the two years of the assigned rights were done illegally. The terms of that said oral agreement were not proved apart from the fact that the Defendant was to finance the production. The Defendant has also said in evidence that whatever he produced was given to the plaintiff for sale at GHC 2.50p in a vehicle purchased by the Defendant for the marketing. Did the Plaintiff add his margin of profit? The evidence does not show. If the parties failed to agree on how the proceeds were to be shared, it is not the duty of the Court to write an agreement for them at this stage as to how to share the proceeds from that business. From the evidence, it is highly probable, than not, that the Plaintiff added a profit margin to the CDs given to him at GHS 2.50p. He is therefore not entitled to his reliefs (i), (ii) and (iii).
The Plaintiff’s relief (iv) is damages for unlawful arrest and malicious prosecution. It has been held in
Amadjei & Ors v. Opoku Ware (1963) GLR 150 SC, per Crabbe J.S.C. (holding 3) that:
An arrest is malicious or unlawful when it is made without reasonable or probable cause, and, unless the arrested man is caught red-handed, when the arresting officer fails to inform the suspect as soon as is practicable that he is being arrested and also the grounds for his arrest. Christie v. Leachinsky  A.C. 573, H.L applied.
Therefore, for a Plaintiff to succeed in a claim for damages for unlawful arrest and malicious prosecution, he or she must establish that: (i) the prosecution was instituted by the Defendant or at his instance; (ii) the Defendant acted without reasonable and probable cause; (iii) the Defendant acted with malice and (iv) the criminal proceedings were unsuccessful or terminated in favour of the Plaintiff.
It is provided under section 12 of the Copyrights Act, 2005 as follows:
Duration of copyright in works of individuals.
(1) The rights of the author referred to in section 5 are protected during the life of the author and seventy years after the death of the author unless the contrary is stated in this Act.
(2) Where a work is jointly authored, the rights of the author referred to in section 5 are protected during the life of the last surviving author and seventy years after the death of that author.
The penalty for copyright infringement is provided under section 43 of the Act thus:
Penalty for copyright offence.
A person who infringes a right protected under this Act commits an offence and is liable on summary conviction to a fine of not more than one thousand penalty units and not less than five hundred penalty units or to a term of imprisonment of not more than three years or to both; and in the case of a continuing offence to a further fine of not less than twenty-five penalty units and not more than one hundred penalty units for each day during which the offence continues.
From the evidence before this Court, Anthony Owusu Ansah died in the year 2013, this means that his musical works are still protected for 70 years from the date of his death. Since the criminal trial of the Plaintiff herein is still ongoing, it is the duty of the criminal court to determine whether the prosecution has proved beyond reasonable doubt that the Plaintiff herein (or the accused therein) has indeed infringed any copyright beyond the two years that Anthony Owusu Ansah and Osuani Katakyie Afrifa assigned their rights in the musical works named in the deeds of assignment to the Plaintiff. Until the criminal case is determined or terminate in favour of the Plaintiff, he cannot claim any damages for unlawful arrest and malicious prosecution. Therefore, his relief (iv) cannot also be granted.
WHETHER OR NOT THE DEFENDANT IS ENTITLED TO HIS COUNTERCLAIM.
From the evidence adduced by the Defendant, he is not the author of any of the musical works in issue. The court has also found that he was not the assignee of the works of Anthony Owusu Ansah and Osuani Katakyie Afrifa which are in issue, but had an oral agreement with the Plaintiff herein to finance the production of the said assigned rights. The agreement which the Defendant had with Elder Emmanuel Agyare was valid from 01/09/2012 to 01/09/2014. Therefore, at the time the Defendant filed his counterclaim, his rights in Elder Agyare’s work, exhibit 3, had been extinguished. Now, the only basis of the Defendant’s counterclaim is the fact of his appointment as a customary successor of the late Anthony Owusu Ansah. As earlier found Anthony Owusu Ansah’s musical works are protected for 70 years after his death. The persons entitled to his economic rights are the beneficiaries of his estate under the Intestate Succession law, 1985, PNDC Law 111. It is on record that no Letters of Administration has been obtained in respect of the estate of the late Anthony Owusu Ansah. Therefore, the Defendant who claims to be the Customary Successor as per his own Statutory Declaration, is only holding the estate and interests of Anthony Owusu Ansah in trust for his beneficiaries.
Therefore, the Defendant who does not own any copyright of the works in issue, cannot make any claim to the musical works of the late Anthony Owusu Ansah in his own right. He is therefore not entitled to any of his counterclaims. Perhaps, the beneficiaries of the estate of Anthony Owusu Ansah will take a cue from this judgment, obtain Letters of Administration, so that they can enjoy the economic rights in the musical works of their deceased relative in accordance with PNDCL 111. The case of Plaintiff and the Defendant’s counterclaim are both doubtful, and they are accordingly dismissed. Each party is to bear his own legal expenses.