The High Court in Accra has dismissed an application by the Confederation of African Football (CAF) to stay the execution of a $250,000 damages award for copyright infringement in favor of Ghanaian music producer Kobby Spiky Nkrumah.
This decision was made after the court, presided over by Justice Emmanuel Logoh, listened to submissions from the lawyers representing both the Applicant (CAF) and the Respondent (Spiky).
“I have heard the legal submissions by both lawyers and also had regard to the depositions contained in the affidavits filed by the parties. Application accordingly refused,” Justice Logoh ruled.
On July 17, 2024, the High Court (Commercial Division) in Accra awarded damages against the continent’s football governing body for using Nkrumah’s music track, Okomfo Anokye, in promotional materials for the 2018 CAF Awards without obtaining his consent.
Stay of Execution
On March 5, 2025, CAF’s counsel, Edem Nuhoho, argued that the court should grant a stay of execution pending an appeal.
According to counsel, the principles governing the determination of an application for a stay of execution were settled in Golden Beach Hotel (Ghana Limited) v. Packplus International Limited [2012] 1SCGLR 452.
While referencing this case, counsel stated that the Applicant must demonstrate that there are arguable points of law to be decided by the Court of Appeal and that, if the appeal is successful, the benefits of the appeal would be rendered nugatory.
Counsel for CAF further cited Evanspenny Industries Company Limited v. Techno-Chem Ghana Limited [1992-1993] GBR 803, in which the court held that, to demonstrate arguable points of law, the Applicant must identify errors of law or fact in the judgment that the Court of Appeal is likely to overturn.
To support this argument, counsel for CAF pointed to page 23, paragraph 21, of the judgment, where the court “equated the promotion of the Defendant’s core business to commercialization.”
“It is our view that the Plaintiff/Respondent himself stated that the only restriction on the use of his copyright was that it should not be used for commercial purposes without his consent.
“The Plaintiff/Respondent did not define what ‘commercial purpose or use’ means; therefore, we believe the ordinary meaning of commercial purpose should apply.
“This Court cannot dispute that the issue of whether the commercial use of a work includes the promotion of core business activities for profit is an arguable point of law,” counsel submitted.
JUSAG’s Example
To further support his argument, CAF’s counsel submitted that: “If JUSAG, as part of its week-long celebration, decides to announce the event on TV using background music, it cannot be said that such use constitutes a commercial purpose.”
The Applicant also contended that the Respondent, in its written submissions, referred to a purported statute of the Applicant, which was not in evidence. The Respondent then argued that, based on certain portions of the said statute, the CAF Awards ceremony constituted a core business activity of the Applicant.
“It is undisputed, and the Respondent has not denied, that the Applicant is a non-governmental institution, a private organization. Its statute is not public, and reliance could only be placed on it if it was in evidence.
“The Respondent, in its affidavit in opposition, argued that the court could have taken judicial notice of it,” counsel for CAF stated.
CAF’s counsel further asserted: “The Respondent did not explicitly request the court to take judicial notice of the said statute, and the judgment does not indicate that the court did so.
“In considering an application for a stay of execution, the focus should not be solely on whether the Judgment Creditor would be deprived of the money awarded, but rather on whether the Applicant could be restored to its previous position if the appeal is successful.
“We have demonstrated through our exhibit MSB2 that, following this judgment, the Respondent granted several media interviews stating that the judgment awarded him more than he expected. More importantly, he admitted that the highest amount he had ever earned from licensing his copyright was only $500.
“The Respondent is an individual, not a going concern, and he will be unable to refund the over GHS 4,000,000.00 awarded by this court if the appeal is successful,” counsel submitted.
No Chance of Success
Respondent’s counsel, Onyinye-Chukwu Mary Magdalene Okeyea, vehemently opposed the application, relying on the affidavit in opposition.
“We argue that the application has no likelihood of success, given the combined effect of Sections 41, 5, and 6 of the Copyright Act, 2005 (Act 690).
“It is clear, as held by this court, that the Applicant did infringe upon the Respondent’s copyright,” counsel argued.
Counsel further stated that his client is entitled to the reliefs provided under Section 47 of the Copyright Act.
“We maintain that, because the judgment was based on Ghana’s copyright laws, every argument raised by the Applicant is unlikely to succeed on appeal. It is preposterous for the Applicant to suggest that the Court of Appeal will rule contrary to Ghana’s copyright laws.”
Addressing the argument about the Applicant’s statute not being in evidence, the Respondent’s counsel stated that the statute was, in fact, exhibited by the Applicant itself as Exhibit I in its witness statement.
Additionally, counsel cited Section 9(3) of the Evidence Act, 1975 (NRCD 323), which allows judicial notice to be taken with or without request.
In response to the JUSAG example, the Respondent’s counsel referenced the widely known Kirani Ayat copyright infringement case, in which the Ghana Tourism Authority used Ayat’s copyrighted material without his consent and had to settle with him, as the unauthorized use was deemed an infringement.
After hearing the arguments from both sides, the court rejected the application.
The decision was based on the Copyright Act, 2005 (Act 690), which provides that copyright infringement can result in damages.
