RANSOME-KUTI vs. PHONOGRAM LTD. [1976]DLHC423

Date	1976-01-28
Suit No.
Citation No.	[1976]DLHC423

EDUSEI J.

NII AZUMA NELSON FOR NANA AKUFO-ADDO FOR THE PLAINTIFF.

N. K. KUDJAWU FOR THE DEFENDANTS.

[1976]DLHC423
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													<main id="main" class="content" style="min-height: 60rem" >RANSOME-KUTI <o:p></o:p>vs. <o:p></o:p>PHONOGRAM LTD.<o:p></o:p>&nbsp;[HIGH
COURT, ACCRA]<o:p></o:p>[1976] 1 GLR 220<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DATE:
28 JANUARY 1976.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

NII AZUMA NELSON FOR NANA AKUFO-ADDO FOR THE
PLAINTIFF.<o:p></o:p>

N. K. KUDJAWU FOR THE DEFENDANTS.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

EDUSEI J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF EDUSEI J.<o:p></o:p>The
plaintiff in this application is seeking an order of this court “restraining
the defendant by itself, its agents, servants and privies from publishing or
causing to be published for distribution, sale or use in Ghana, a musical tape
entitled ‘Everything Scatter’ owned and produced by the plaintiff between May
and October 1975.”<o:p></o:p><o:p>&nbsp;</o:p>The facts
as revealed by the rival affidavits are not seriously in dispute. It is
admitted by the defendants that the plaintiff created and composed a musical
work entitled “Everything Scatter” in Nigeria but by an agreement, exhibit A,
made between the plaintiff and Phonogram Ltd. (Nigeria) dated 14 October 1975,
the plaintiff assigned to Phonogram Ltd. (Nigeria) the sole and exclusive right
to produce or reproduce and sell the works on records and tapes as a single
album as well as recordings on cassette tapes and cartridges all over the
continent of Africa for a period of three years from 14 October 1975, in
consideration of sums of money specified in the said agreement.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff is contending that Phonogram Ltd. (Nigeria) (hereinafter referred to
as the Nigerian company) has no right whatsoever to delegate its duty of
publishing to the defendants, and counsel for the plaintiff referred to the
case of Griffith v. Tower Publishing Co. Ltd. [1895-99] All; E.R. Rep. 323
where it was decided that a publishing agreement between an author and his
publisher or firm of publishers is personal to the parties and cannot be
assigned without the author’s consent. In this case the plaintiff agreed with the
defendant-company, a firm of publishers, for the printing and selling of his
three novels but the publishers went into liquidation and were arranging with
another company to publish the said novels. On application for an injunction to
restrain the defendants and the receiver the court said an injunction should
go. It is clear from the judgment that the copyright in the novels remained in
the plaintiff who was entitled to protect his interest in so far as the
printing and selling of the novels were concerned. He therefore instituted the
action to restrain the defendants therein. And in the absence of any power in
the defendants to assign their right and interest in the agreement, it is clear
that they could not without the consent of the author (the plaintiff) attempt
to assign the publication of the novels to another company. Again it seems that
the right to assign any interest in the agreement was not reserved to either of
the parties. There can be no doubt that this decision confirms the principle
that such contracts are personal and on the facts of the case the decision in
my view was correct.<o:p></o:p><o:p>&nbsp;</o:p>In the
case before me the parties entered into a formal agreement, exhibit A, in which
the parties include their successors-in-title and assigns. The opening words of
the agreement, exhibit A, presuppose that the right to assign the interest in
the agreement is reserved to both parties unless there is a term to the
contrary further down in exhibit A. Again by paragraph (5) of exhibit A, the
copyright in the musical works has passed to the Nigerian company for a period
of three years during which the sole and exclusive right to produce or
reproduce and sell the works in records and tapes over the continent of Africa
is vested in the Nigerian company. The Nigerian company has licensed the
defendants, a sister company in Ghana (part of Africa) to reproduce the said
musical work in Ghana for them, and section 10 (5) of the Copyright Act, 1961
(Act 85), which permits the grant of licence stipulates as follows, “A licence to
do an act falling within copyright may be written or oral, or may be inferred
from conduct, and may be revoked at any time.” Also section 10 (2) states:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“An
assignment or testamentary disposition may be limited so as to apply to some
only of the acts which the owner of the copyright has the exclusive right to
control or to a part only of the period of the copyright.”<o:p></o:p><o:p>&nbsp;</o:p>