KOFI SALIA vs. LATEX FOAM RUBBER PRODUCTS LIMITED [2010]DLHC3876

Date	2010-10-29
Suit No.	SUIT NO.RPC/50/10
Citation No.	[2010]DLHC3876

ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT

KWAME OWUSU AFRIYIE FOR THE PLAINTIFF

JAMES OSEI KOFI FOR THE DEFENDANT

[2010]DLHC3876
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													<main id="main" class="content" style="min-height: 60rem" >KOFI SALIA<o:p></o:p>vs.<o:p></o:p>LATEX FOAM RUBBER
PRODUCTS LIMITED<o:p></o:p>&nbsp;[HIGH COURT (COMMERCIAL
DIVISION), KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

SUIT NO.RPC/50/10&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;DATE: 29TH OCTOBER, 2010<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>KWAME OWUSU AFRIYIE FOR THE
PLAINTIFF<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

ANGELINA
MENSAH-HOMIAH (MRS.) JUSTICE
OF THE HIGH COURT<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

</div>The plaintiff caused a writ of
summons to be issued from this court claiming these reliefs:<o:p></o:p>(a)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Compensation
of Ten Thousand Ghana Cedis (GH¢ 10,000.00) for using his photograph to
advertise its products without his consent and concurrence.<o:p></o:p>(b)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; General
damages.<o:p></o:p>The Plaintiff’s case is that he is a
professional body builder and was also employed as a security man in the
Defendant’s company until 2nd March 2009 when his appointment was
terminated. Prior to the termination of his appointment, the Plaintiff said the
company erected bill boards throughout the country’s roads depicting his
picture in a near naked manner to advertise its products. According to the
Plaintiff, this act did not form part of his employment contract. He also
contended that this act was done on Commercial basis for profit and has caused
him so much discomfort and embarrassment. In addition to the advertising bill
boards, it is the Plaintiff’s claim that the defendant company printed ‘T’
shirts and inscribed his photograph in the same manner on them.<o:p></o:p><o:p>&nbsp;</o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The
Defendant’s case is that in exchange for the various sponsorships given to the
Plaintiff, the Plaintiff agreed with the company for the use of his photograph
to advertise its products. The Defendant further stated that after the
Plaintiff’s employment had been terminated, he told them he had found new
sponsors. Thus, the&nbsp; advertising bill
boards depicting the pictures of the Plaintiff were removed by a mutual
agreement. In its statement of defence, the defendant denied that the use of
the Plaintiff’s photograph for advertisement was outside the scope of his
employment. Having consented to the use of his photograph for advertisements,
the Defendant company maintains that the Plaintiff is not entitled to his
claims. <o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>The issues set for trial are stated
below:<o:p></o:p><ol style="margin-top:0in" start="1" type="1">
 <li class="MsoNormal" style="text-align:justify;line-height:115%;mso-list:l0 level1 lfo1;
 tab-stops:list .5in">Whether
 or not the Defendant depicted Plaintiff’s pictures on its advertising bill
 boards without the Plaintiff’s consent?<o:p></o:p></li>
 <li class="MsoNormal" style="text-align:justify;line-height:115%;mso-list:l0 level1 lfo1;
 tab-stops:list .5in">Whether
 or not Defendant sponsored the Plaintiff in any competition?<o:p></o:p></li>
 <li class="MsoNormal" style="text-align:justify;line-height:115%;mso-list:l0 level1 lfo1;
 tab-stops:list .5in">Whether
 or not Plaintiff absented himself from work for five months and was paid
 his salary notwithstanding his absence.<o:p></o:p></li>
</ol><o:p>&nbsp;</o:p>This being a civil suit, the
required burden of proof will be in accordance with sections 11(1), 11(4) and
12 of the Evidence Act, 1975 N.R.C.D. 323 which have been quoted below:<o:p></o:p>Section 11(1)&nbsp; For the purposes of this Decree, the burden of producing evidence
means the obligation of a party to introduce sufficient evidence to avoid a
ruling against him on the issue.<o:p></o:p>Section 11(4)&nbsp; In other circumstances, the burden of producing evidence requires a
party to produce sufficient evidence so that on all the evidence a reasonable
mind could conclude that the existence of the fact was more probable than its
non-existence.<o:p></o:p>Section 12 (1) except as otherwise
provided by law, the burden of persuasion requires proof by a preponderance of
probabilities.<o:p></o:p>Section 12(2) “preponderance of the
probabilities” means that degree of certainty 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. <o:p></o:p>