Division: IN THE SUPREME COURT
Date: 28 FEBRUARY 1964
Before: SARKODEE-ADDO CJ, ADUMUA-BOSSMAN AND BLAY JJSC
JUDGMENT OF ADUMUA-BOSSMAN JSC
This appeal is against a final judgment dated 17 June 1963, and a consequential interlocutory judgment dated 26 June 1963 by the High Court, Accra, whereby the court upheld the plaintiff’s claim for damages and other reliefs for infringement by the defendant company (hereinafter called the company) of the said plaintiff’s copyright in certain musical works or songs, twelve in number, the names or titles of which were set out in the statement of claim. The court made a finding that the company produced 5,000 records each of the twelve songs, i.e. a total of 60,000 records, and sold the same at three shillings each amounting to £G91,000, and it awarded that sum (£G9,000) as special damages, in addition to a sum of £G1,000 for general damages. The court further granted an order of perpetual injunction as claimed.
The claim on the writ was in the following:
“(a) The plaintiff’s claim is for £G5,000 [later amended to £G12,000] damages for infringement of copyright in musical works.
(b) An account of all the records made and sold by the defendants and payment to the plaintiff at the rate of 3s. per record made or sold by the defendants.
(c) Perpetual injunction against the defendants, their agents and servants from continuing the said infringement.”
The following was the short statement of claim filed to supplement the writ:
“(1) Plaintiff is the author of musical works, entitled [the names or titles of twelve songs were here set out] and the owner of the copyright therein and of the sole right of performing such works in public.
(2) The defendants have infringed the plaintiff’s said right by having recorded the said musical works on gramophone records and selling the said records to the public without the consent of the plaintiff first had and obtained.
(3) The defendants intend, unless restrained from so doing, to continue the said recording and sales of plaintiff’s said musical works.
(4) The plaintiff claims as per writ of summons.”
By the statement of defence filed on behalf of the company, the substantial defence was a denial of all the allegations of fact contained in the statement of claim, and an averment that the plaintiff was put to a strict proof of the said allegations in the statement of claim. Subsequently, however, notice was filed and served to raise the following additional plea in defence, “The defendants will further contend at the trial that this action is statute-barred.” In due course, with the leave of the court, this latter plea was admitted as an amended additional plea in the statement of defence.
Counsel for the plaintiff did not ask leave to, and in fact did not file a reply to the said amended plea, or any other plea, in the statement of defence, wherefore the resulting position according to Order 27, r. 14 was that the pleadings were “deemed to be closed and material statements of fact in the pleading [i.e. the statement of defence] last delivered shall be deemed to have been denied and put in issue.” In respect, therefore, of the plea introduced by amendment that the action was statute-barred, the allegation or averment was merely denied and put in issue; but it is particularly to be noted that there was no “confession and avoidance,” i.e. an admission that the said original infringement by recording and selling was indeed affected by the prescribed statutory limitation but that further acts of infringement had been or were committed within such time as to take the case out of the operation of the statutory limitation. Such pleading by “confession and avoidance” in a reply would, in my view, be necessary to give to the court and the defendant notice of any other acts of infringement, other than the original acts alleged in paragraph (2) of the statement of claim, which were intended to be established or proved as operating to take the case out of the operation of the prescribed statutory limitation. So in Hall v. Eve1 in answer to a claim for specific performance of an agreement, the statement of defence alleged that by certain clauses of the agreement the defendants were enabled on the happening of certain events to annul the agreement, and they had, on the happening of the events, annulled it. It then became necessary for the plaintiff not only to put the defendants to the proof of the alleged happenings but to raise the further defence that even if the happenings occurred, the circumstances surrounding them did not entitle the defendants to annul the
contract as they claimed they were entitled to do. It was held that this should be done in a reply. James L.J. in that case discussed the legal situation as follows2:
“In the present case the plaintiff, by his statement of claim, says, `I am entitled to specific performance of a certain agreement.’ The defendants, by their statement of defence, say, `You have committed breaches of the agreement which entitle us to put an end of it, and we have put an end to the agreement.’ The plaintiff, in his reply, says, `Your allegations are not true, and if they are, the things which you say I have done I was induced to do by yourself, and therefore it is inequitable that you should set up that defence.’ A man is entitled to say that; and there can be no question that a man ought to be at liberty to say, `I put you to the proof of what you alleged’; and further to say, `If what you allege is true, then I have this further defence.’ The only question is, whether he is entitled to put that into his reply . . . I am of opinion . . . on the plain rules, that the reply is the proper place in which to meet a defence by confession and avoidance.”
As already stated, however, no reply was filed on the plaintiff’s behalf in respect of the allegations in the statement of defence, particularly the averment that the action was statute-barred, and the full significance of this will become apparent at a later stage of this judgment. Meanwhile, in that state of the pleadings, namely, that issue was merely joined on all the allegations both in the statement of claim and the statement of defence, the trial began; and the plaintiff in the normal way commenced by adducing evidence towards establishing or substantiating the allegations in the statement of claim, particularly the allegations in paragraphs (1) and (2) on which his claim to reliefs was dependent. [His lordship here set out the essence of the testimony and cross-examination of two of the plaintiff’s witnesses the important aspects of which are referred to later in the judgment, and continued:] Coming now to the plaintiff’s evidence, the substance thereof was that he was a merchant of Accra, and that the notebook which he tendered as exhibit B was his and contained songs composed by himself, including those that were the subject-matter of the action. Those songs were marked with an “X” in ink in exhibit B. All the said songs had been recorded by the defendant company, and he bought copies of all, but most of them had been stolen from his possession leaving only exhibits A-A5 inclusive. The basic rhythm of those songs were not high-life but of European and Afro-American tunes, or the Latin-American type of tune. The plaintiff was, he claimed, the first person in this country to have composed his own composition in English style, as opposed to the traditional high-life style. He started composing the twelve songs about 1951, and had a
special arrangement with the Black Beats band members for four years teaching them his songs for purposes of recording. The arrangement was that when the band could play any of his songs, he would arrange with a company for a recording to be made and from the proceedings derived the band would be entitled to a quarter share. The proceeds of a trial recording made with U.A.C. Ltd. had been shared on that basis. He also sang his compositions with the first witness, Wiafe-Sampah, Amponsah and others on Radio Ghana, accompanied by the Black Beats band and sometimes the Radio Ghana band, after arrangements had been made for them by the second witness Mr. Leo Riby-Williams. It was true that he sometimes showed his composition to the second witness who assisted him with corrections in the wording. Some time in 1955 he approached the company with a list of his songs and discussed with the provisions manager in charge of recordings about having the songs recorded; he was taken to the company’s recording centre, Sheffield House, where trial recordings were made, after which he was assured recordings would be made of his list of songs. Later, however the company did not notify or invite him to attend to have the recordings made, but his boy informed him that a record of one of the songs was being played in a beer bar, and therefore he discovered that his list of songs had been recorded without his knowledge and participation in the venture. He interviewed the general manager of the company who referred him to the African manager, from whom he learnt that the songs had been played for the recording by the Black Beats band and that King Bruce, the leader of the band, had claimed to be the composer. He went to the provisions manager to collect the list he left with him but the latter ordered
him out of his office. He therefore instructed his solicitor who, on 16 October 1957, wrote a letter (exhibit C) to the manager of the company to complain of the company’s infringement of his copyright in the songs and to demand compensation. The company caused their solicitor to write in reply (exhibit D) denying his claims, and so, having failed to get a settlement, he caused a writ to issue which commenced the action that resulted in this appeal. [His lordship here set out part of the cross-examination of the plaintiff, the important aspects of which are referred to later in the judgment and continued:]
On behalf of the company, Mr. Jacques Borle, their merchandise manager gave evidence and admitted that the company had made gramophone recordings of the songs listed in paragraph (1) of the statement of claim, consequent upon a written agreement made with the Black Beats band through their leader King Bruce (exhibit 3). The company did not know the plaintiff at all and believed King Bruce to be the composer of the songs in question, as he was the undisputed composer of other songs which his band recorded for them. The recordings by the Black Beats band was just part of a general system whereby the company procured bands and other musical bodies to record West African songs for the company, as per a booklet of all recordings for the company, exhibit 4. The general system of recordings started in 1951 but the witness, who took over only as from August 1962, did not know when recordings of the songs in dispute were made. After the records were made, they were sold both by wholesale and retail, but the company stopped selling the type of records shown in exhibit 4 in 1960. In 1961 the company sold by auction at a clearance sale all their stock of Senfone records to which exhibit 4 relates and closed down the recording business because it was not profitable. The company did not know the plaintiff as composer of the songs in dispute because, among other things, there were no written music manuscripts of them. The company had been served with a notice to produce their records of sales of the grammophones of the disputed songs but the company did not have the records sought. [His lordship here set out part of the cross-examination of Mr. Borle, the important aspects of which are referred to later in the judgment, and continued:] With regard to this last question put by counsel for the plaintiff concerning the plaintiff’s statement that he left a list of his songs with the provisions manager who had arranged to have the same recorded, it seems to me the circumstances are against the said statement being true; for if the statement were true, first why was no mention made of it when counsel for the plaintiff wrote exhibit C in October 1957? Secondly, when counsel ultimately instituted this action and got himself prepared for the trial, why did he not include this vital matter of fact among the list of matters, or facts, which the defendant company was called upon to admit? Thirdly, why was the defendant company not served with a notice to produce by all means the list alleged to have been left with their provisions manager? Not one of these three important steps having been
taken—particularly the third—I find it quite impossible to believe the plaintiff did approach the said representative and left the list of songs with him at all as alleged. In so far, therefore, as it is necessary to resolve the conflict of evidence on that undoubtedly important matter, as a subsidiary material question of fact, I have no hesitation whatsoever in resolving it adversely against the plaintiff, and holding that the allegation that a list of the twelve songs was submitted to the company’s representative some time in 1955, who gave an oral undertaking to arrange and have recordings made of them, is completely unfounded.
It is now necessary, it seems to me, to examine the evidence of the parties to ascertain how, in each instance, the same succeeds, or fails, to establish or substantiate the allegations in respect of which that party has the onus. Turning first to the plaintiff’s case, it will have been observed or noticed all along that the claim is to the authorship of “musical works,” or songs; and it would seem to follow that the plaintiff was under an obligation to prove or establish the authorship of, not just, or merely, the words, stanzas, or verses of the songs, but, far more important and crucial, of the air, tune, melody, or music which constitutes each song. It seems scarcely necessary to point out that a song can hardly consist of just, or only, the words or verses without more. There must be the melody or music, and so long as that is there, i.e. the music, then a song is really and truly in existence, which song can exist even without words to
which it can be adapted. And it is the most astonishing feature about the trial of this case that little or no attention whatsoever appears to have been directed by all concerned to the question of what was supposed, according to the plaintiff, to be the composition of the melody or music of the twelve so-called “musical works.” In this connection it is pertinent and material to refer to the following exchange in the cross-examination of the plaintiff:
“Q. Suggest to you that exhibit B is the only evidence that you composed these twelve songs.
A. Exhibit B is now the only written evidence; but registered my booklet in 1957, and copies thereof were circulated to all libraries. Exhibit B is in fact the only evidence I have shown to the court.”
When, however, we turn to and examine the pages of exhibit B, the striking and remarkable position revealed is that there are inscribed or written out in certain pages the words, or stanzas, or verses, of the so-called twelve “musical works” but not the musical notation plainly and intelligibly appearing, and disclosing or indicating to any person acquainted with music to read and understand, the tune, or melody, or music, of each of the twelve “musical works.” The manner in which the songs set out in paragraph (1) of the statement of claim appear in the book, exhibit B, are as follows: “Rain Drops,” at page 95, the words or verses, with some tonic solfa alphabets or letters which, however, are completely unintelligible, because no musical alphabets, letters, figures, signs, or symbols, or proper notation, are used or employed to arrange the solfa letters in the form of intelligible music notation. The same applies to “Where Are You” at page 97; “Amada Mia” at pages 11-12; “Negrita Samba” at page 69; “Emma Wawa” at page 45; and “Little Auctioneer” at pages 18 and 21. With regard to the rest, only the words or verses appear on the pages of exhibit B; but not even the unintelligible tonic solfa writing, as follows: “Take Her In Your Arms” at page 85, verses only; “Annie Claire” at page 61, verses only; “Sailing Home” at pages 6-7, verses only; “Follow Your Lover” at page 9, verses only; “Sweet Adelina” at page 3, verses only; and lastly “Baya Mambo” at page 90, only the title or name of the song, but not even the words or verses of the song.
It does not come as a surprise altogether to find exhibit B in that condition, that is to say, without any intelligible musical composition written therein by the plaintiff, when regard is had to the evidence by his own first and second witnesses, as to his inability to read and write musical notations. The evidence of both witnesses on this point was elicited under cross-examination and the first witness when asked, “Plaintiff cannot read music notes?” replied, “He cannot.” Also the second witness when asked, “The plaintiff cannot read and write music notation?” replied, “He writes in solfa notation . . . I do not know that he can write notation, but I know he can write in solfa notation. I have never seen plaintiff write solfa notation.” The plaintiff not being able to read and write music, as testified to by his own two principal witnesses, it is scarcely to be wondered that his book exhibit B is in the condition in which it plainly appears, i.e. completely and entirely devoid of any comprehensible or intelligible musical composition written out by himself, or even by any other person at his dictation, in so far as the twelve named or specified pieces are concerned in which he claims “musical copyright.” For the purposes of the determination of the issues outstanding in this case, therefore, the undoubted and indisputable position is, that at the trial the plaintiff was unable to, and did not, place before the court, the manuscript, written out in musical language, of the air, tune, melody, or music, of any of the twelve “musical works” of which he claimed to be the author and in respect of which he claimed copyright. It is, however, basic and fundamental to the subsistence of copyright in any form of literary composition, musical or otherwise, that there is a composition in writing to which the right relates or is thereto appurtenant. So, in one of the leading cases in which the nature and origin of the incorporeal right of copyright was exhaustively discussed by all the Justices of the Queen’s Bench and Common Pleas and the Barons of the Ex-chequer specially invited by Cranworth L.C. to the House of Lords for the consideration of that case, namely Jefferys v. Boosey,3 Parke B. explained the nature of a “copyright” in these words:
“The term `copyright’ may be understood in two different senses. The author of a literary composition which he commits to paper belonging to himself, has an undoubted right at common law to the piece of paper on which his composition is written, and to the copies which he chooses to make of it for himself, or for others . . . The other sense of that word is, the exclusive right of multiplying copies: the right of preventing all others from copying, by printing or otherwise, a literary work which the author has published.”
In these two definitions put forward by the learned Baron, it seems scarcely necessary to point to the presence of that basic essential requirement of a manuscript or paper on which a composition is inscribed or written out, as the sine qua non to which the incorporeal right called “copyright” can be attached. In the earlier case of Abernethy v. Hutchinson4 a famous lecturer of surgery at St. Bartholomew’s Hospital, who had delivered oral lectures on surgery to his students and persons permitted by him to attend the lectures, found his lectures published for profit by unauthorised persons. He sought an injunction to restrain such publication, but could not comply with the court’s order to produce the notes or writings from which he had prepared and delivered the lectures. Eldon L.C., held that5:
“Upon the whole, taking this case as it now stands as a case simply of oral lectures, it must be tried whether it is legal to publish them or not. Upon the question of property in language and sentiments not put into writing, I give no opinion, but only say that it is a question of mighty importance. At present, therefore, I must refuse the injunction; but I give leave to make this very motion on the ground of breach of contract or of trust.”
When the motion was renewed on a subsequent date, the learned Lord Chancellor before embarking upon the consideration of the motion on the ground of breach of contract, or of trust, was reported to have made the following observation concerning the motion for injunction on the basis or ground of piracy of a composition6:
“[W]here the lecture was orally delivered, it was difficult to say that an injunction could be granted upon the same principle upon which literary composition was protected; because the Court must be satisfied that the publication complained of was an invasion of the written work; and that could only be done by comparing the composition with the piracy.”
By contrast, however, in Nicols v. Pitman7 the plaintiff was an author and lecturer on scientific subjects who delivered a lecture from memory, although it was in manuscript, to which the audience were admitted by tickets issued gratuitously. The defendant, the author of a system of shorthand writing and publisher of works intended for instruction in the art of shorthand writing, attended the lecture and took notes, nearly verbatim, in shorthand of the lecture and afterwards published the lecture in his monthly periodical. On a motion for an injunction to restrain the publication it was held that the audience at the lecture were quite at liberty to take the fullest notes for their own personal purposes, but they were not at liberty to use the notes of the lecture afterwards for the purposes of the publication of the lecture for profit. (See also Caird v. Sime.8) In the still earlier case of Macklin v. Richardson9 at a private performance of a farce entitled Love à la mode written by the plaintiff, the defendant’s employee, a shorthand writer, took down the words from the mouths of the actors on the stage and the defendant afterwards published them. An injunction was granted to restrain the defendant from publishing this copy since the manuscript of the play was available.
It seems reasonably plain therefore, from the few cases referred to, that even in connection with copyright in this first sense, in which it is said by some of the English judges of the eighteenth and nineteenth centuries to be acknowledged or recognised by the common law, as implying the expression of intellectual ideas in literary composition or form, that expression derives its validity from the circumstance that it is committed to, or is made or written out on a manuscript or paper.
Paradoxically enough, however, it appears that initially, the recognition accorded by the common law to any literary composition reduced into writing, or the expression of any intellectual idea in written form, did not extend to a musical composition, or the expression of the intellectual idea of music by means of musical language or musical notation. So in Monckton v. The Gramophone Co., Ltd.10 there was raised the important question of whether a composer could prevent the production by means of gramophone records, of the music which he had composed but had not consented to being reproduced. The defendants, without the permission of the plaintiff, transcribed the music of a song of which the plaintiff was the
composer, to sheets of vulcanized india rubber by a system of notation which enabled the music to be reproduced mechanically by the use of their gramophones. The plaintiff therefore claimed a declaration that he was exclusively entitled to make, or authorise the making of gramophone sheets for the performance or reproduction of his musical composition, an injunction, accounts, and an order for the delivery up of the sheets made by the defendants. The plaintiff did not found on or rely upon any statutory copyright, but he rather claimed a common law right of proprietorship in his composition or work. The defendants denied that there was any such common law proprietary right in the composition. The trial judge, Joyce J. held that the plaintiff, after the publication of his musical composition had no proprietary right apart from such as was conferred by statute, and dismissed the case on that short ground. An appeal to
the Court of Appeal was dismissed. The Master of the Rolls in the course of his judgment for the court was reported to have stated that11:
“[T]he appeal raised a point which he thought had been so firmly settled that he was surprised that it had been brought before the Court. The plaintiff was the composer of a song which had been introduced into a dramatic performance and he was undoubtedly entitled to that protection afforded by existing statutes so far as both the dramatic and literary copyright were concerned. The defendants were doing something which was not an infringement of those statutory rights, but the plaintiff said that side by side with the statutory protection there existed at common law a perpetual right to restrain the defendants from making use of the
musical ideas which the plaintiff had made public under the protection afforded him by the Copyright Acts. On principle his Lordship could see no justification for that view . . . But had the law ever recognized any property in an idea expressed not in language but in some form of notation after it had once been made public? The judgments of Lord Camden in Donaldson v. Beckett (4 Burr., 2408) and of Lord Brougham in Jefferys v. Boosey (4 H. of L.Cas., 815) seemed to make it unanswerable that the right which the plaintiff was seeking to assert was one which at common law, with which alone the Court had to do, did not exist.”
As indicated, however, in the statement of the legal position by the learned Master of the Rolls (supra), statutory enactments of the imperial legislature came to accord recognition to the expression of the intellectual idea of music in, or by means of, musical language or notation; and not only that, but the expression of all other forms and kinds of intellectual ideas. The first enactment, as is well known, was the Copyright Act, 1709,12 by the preamble of which its expressed object was, “An Act for the Encouragement of Learning by vesting the Copies of printed Books in the Authors or Purchasers of such Copies during the Times therein mentioned” and by which it was enacted:
“…That from and after the Tenth Day of April One thousand seven hundred and ten the Author of any Book or Books already printed who hath not transferred to any other the Copy or Copies of such Book or Books . . . shall have the sole Right and Liberty of printing such Book or Books for the Term of One and twenty Years to commence from the said Tenth Day of April and no longer and that the Author of any Book or Books already composed and not printed and published or that shall hereafter be composed and his Assignee or Assignees shall have the sole Liberty of printing and reprinting such Book and Books for the Term of Fourteen Years to commence from the Day of the first publishing the same and no longer….[PROVIDED always That after the Expiration of the said Term of Fourteen Years the Sole Right of printing or disposing of Copies shall return to the Authors thereof if they are then living for another Term of Fourteen years.13“
There was no definition section to the Act, but in the course of its recital of matters which led to its promulgation it recited that:
“WHEREAS Printers Booksellers and other Persons have of late frequently taken the Liberty of printing reprinting and publishing or causing to be printed reprinted and published Books and other Writings without the Consent of the Authors or Proprietors of such Books and Writings to their very great Detriment and too often to the Ruin of them and their Families…”
Moreover, after conferring copyright on authors in terms as set out above, it went on to make provision for legal proceedings against offenders against its provisions and enacted that:
“… such Offender or Offenders shall forfeit such Book or Books and all and every Sheet or Sheets being Part of such Book or Books to the Proprietor or Proprietors of the Copy thereof who shall forthwith damask and make Wast Paper of them. And further that every such Offender or Offenders shall forfeit One Penny for every Sheet which shall be found in his her or their Custody either printed or printing published or exposed to Sale contrary to the true Intent and Meaning of this Act…”
By reason of the said references to “other Writings,” and “every Sheet or Sheets being Part of such Book or Books,” in the construction of the Act it has been held to apply to every “writing” and every “sheet” of paper inscribed or written upon. So in Bach v. Longman14 it was held that a musical composition is a “writing” within the Act (8 Anne c. 19) for the encouragement of learning by vesting the copies during the times therein mentioned.
There is also the subsequent case of Clementi v. Goulding15 where it was reported:
“The plaintiff obtained a verdict with damages against the defendant in this action,…before Lord Ellenborough C.J. for the pirating a sheet of music of which the plaintiff had the copyright; and the only question was, whether this being a single sheet were within the protection of the stat. 8 Ann. c. 19, which, mentioning in the preamble ‘books and other writings,’ speaks in the enacting part only of book or books: and liberty was reserved to the defendant to move to set aside the verdict and enter a nonsuit. [Counsel] moved accordingly….and pressed to have the point settled; adverting to the words of the Act which speaks in another part of every sheet or sheets being part of such book or books.’ On which the Court, as the point had been reserved, granted him a rule nisi; but Lord Ellenborough C.J. then said that though he had leant in favour of the objection at the trial, yet on further consideration he was now disposed to consider that a sheet was a book within the meaning of the Act: and he recollected that when the same question was made in a cause a few years ago, the Court were disposed to think that the case was within the statute. And such appeared to be the opinion of the other Judges.”
Finally, reference might be made to White v. Geroch16 where the headnote states:
“In declaration for pirating a book, an allegation that plaintiff was the author of a book, being a musical composition, called A., is well supported by shewing him to be the author of a musical composition of that name, comprised in and occupying only one page of a work with a different title, which contained several other musical compositions.”
Abbott C.J. in his judgment on the case observed17:
“The object of the Legislature was, to confer upon authors, by the Act in question, a more durable interest in their compositions, than they had before; and I am of opinion, that any composition, whether large or small, is a book within the meaning of this Act of Parliament. It is perfectly clear, that it would be a book, if printed as a separate and distinct work; and if so, it seems to me, that it does not lose that character, by being found in company with other compositions.”
The policies and principles of the foundation or initial statute as interpreted in the cases decided under that Copyright Act were generally preserved and substantially retained in the subsequent statutes, by which, in the main, the period of duration of copyright was more extended, and other rights and privileges of authors given better recognition and greater safeguard, and these subsequent statutes culminated in the passing of the Copyright Act, 1911.18 This latter Act is the enactment material and relevant to the decision of the case with which we are now concerned since, in accordance with its provisions, by proclamation dated 10 June 1912 of the then Governor administering the former Gold Coast Colony, the Act was brought into force within the jurisdiction as from 1 July 1912, and remained operative till repealed by the Ghana Copyright Act, 1961,19 which came into operation as from 1 March 1962.
From the principle of the cases above-referred to, and indeed the clear terms of the two English Copyright Acts (supra) it seems plain beyond argument, doubt or dispute, that copyright implies the subsistence of a manuscript of written matter, and in the case of a musical composition or musical work, the subsistence of a manuscript of an air, tune, harmony, melody, or music; or, to borrow the definition of “musical work” from section 3 the Musical (Summary Proceedings) Copyright Act, 1902,20 which was partially repealed by the Copyright Act, 1911 (supra) without the said definition being affected, “Musical work means any combination of melody and harmony, or either of them, printed, reduced to writing, or otherwise graphically produced or reproduced.”
On behalf of the plaintiff, the pages of his book exhibit B which counsel (or someone on his behalf) marked with a cross in ink (X) containing, for the most part, just the words or verses of the songs but no intelligible musical notation to indicate the melody or music of each piece, and which were relied on to support his claim to authorship of the so-called musical works, fails decisively, in my opinion, to establish his claim, and the learned trial judge, with respect, erred in thinking that mere verses constitute songs or musical compositions or musical works. It follows, therefore, that the plaintiff, in my view, by the evidence he adduced, oral as well as documentary, failed completely to establish the claim to copyright under the Copyright Act, 1911, to the twelve so-called musical works, which he put forward against the defendant company.
Now, although the conclusion to which I have arrived as above indicated, would seem to dispose of the case, nevertheless it appears to me to be more satisfactory to deal with the other major issue raised, namely, the question of the action being statute barred, on the assumption that the plaintiff had a valid copyright in the twelve pieces which were infringed. The statute referred to is, of course, the Copyright Act, 1911, (supra) by section 10 of which it was provided that “an action in respect of infringement of copyright shall not be commenced after the expiration of three years next after the infringement.”
The onus was, of course, on the defendant company, but without doubt they were entitled to avail themselves of admissions and other relevant evidence made available by the plaintiff and his witnesses. In this regard the decisive evidence, it seems to me, is that of the first witness, Wiafe-Sampah, who was asked and answered questions under cross-examination, as follows:
“Q. Do you know whether these twelve songs were recorded and being sold before 1956?
A. Yes.
Q. And that C.F.A.O. the defendants were selling them as far back as 1956?
A. Yes . . .
Q. When did you first know that C.F.A.O. the defendants had recorded these songs?
A. Between the years 1954-1956.
Q. Did you discuss it with plaintiff?
A. Yes—I did so in 1956.
Q. What did he tell you?
A. He told me he would sue the C.F.A.O.”
The plaintiff, however, took no immediate step but waited till October 1957 when his solicitor wrote on 16 October 1957 (exhibit C) demanding £G50,000 and 20 guineas solicitor’s charges, as consideration for not instituting legal proceedings for the company’s alleged breach of copyright. A reply dated 23 October 1957 (exhibit D) was transmitted to the plaintiff’s solicitor without delay, so that making all reasonable allowances, he had as from 1 November 1957, a period of three years, expiring on 31 October 1960, within which he should have instituted an action, but he did not do so. It seems too plain for argument, therefore, that on the issue joined by the plaintiff with the defendant company, on their amended defence, that the action was statute barred, the defendant company’s allegation or plea was definitely and indisputably made out. The learned judge, however, in dealing with the matter first observed that: “It
must be observed that an infringement may be of a recurring character. Sales may be made of infringing articles long after they are made. See Halsbury’s Laws of England (3rd ed.), Vol. 8, p. 444.” In making that observation, he would seem to have adopted without adequate scrutiny and verification the submissions of counsel for the plaintiff in his final address to the court, in the course of which he submitted that:
“On infringement—defendants have admitted they made the record and sold them as far as 1961. Not clear though, when they started—but the plaintiff got to know of it in 1957. Infringement as continuing tort. Submits action accrued to plaintiff upwards to 1961. Last time cause of action accrued was in 1961. Refers on this point to Halsbury’s Laws of England (3rd ed.), Vol. 8, p. 444.”
Now, it is precisely in this connection that the failure to file any reply to the defendant company’s amended defence that the action was statute barred becomes of decisive importance. If counsel intended to put forward the further explanation now advanced in the final address, he was in duty bound to give notice of it by filing formal reply “confessing” that the original cause of action set up as consisting in the recording of the records and selling same did lapse; but then alleging or setting up new acts, as now stated in the final address, that there had been continuance of sale of the offending records within a period of three years before the action was brought, in respect of which the plaintiff was entitled to maintain an action. That not having been done, however, in my view, no question of fresh acts within three years of action brought arose at all for consideration, and the learned judge erred in dealing with the matter as though it was outstanding for consideration and determination at all.
But it may be contended in this connection, that even if there was not specific pleading by means of a formal reply by the plaintiff that he was relying on particular acts of infringement which took place within three years of the date of his writ, the learned judge found that, “In this case, according to the defendants’ evidence the defendants continued to sell those records until the year 1961 when they cleared their stock by action at a clearance sale. It follows therefore that the plaintiff is not caught by the section [10 of the Copyright Act, 1911] referred to”; and that having regard to the said finding there must have been relevant evidence available, and if there was the evidence available, the court was bound to take cognizance of and act on it, even though the fact to which the evidence relates had not been specifically pleaded. This latter proposition was advanced or put forward by the West African Court of Appeal in a Nigerian case entitled Abowaba v. Adeshina21 which has since been frequently acted on in the courts
here in Ghana. In that case, the court in a joint judgment, stated the proposition in these words:
“The object of pleadings is to compel the parties to define the issues upon which the case is to be contested and to prevent one party taking the other by surprise, by leading evidence on material facts of which the other has no due warning. The penalty for failing to plead a material fact is the exclusion, upon objection being taken, of evidence to establish it.
There are certain types of evidence, such as hearsay, and unstamped or unregistered documents which are inadmissible per se, they cannot form the basis for a decision, and objection to them may be taken at any stage of a trial or on appeal, but in our opinion the case is different where evidence, which could have been ruled out as inadmissible because it is adduced to prove a material fact which was not pleaded, has nevertheless been adduced without objection and is before the Judge. In our opinion the evidence as to waiver of forfeiture in this case falls within the latter class, and the trial Judge was bound to take it into consideration, and the appellant not having raised his objection at the trial is precluded from doing so on appeal.”
Unfortunately, however, no authority was cited or referred to in support or confirmation of such an important and far-reaching proposition; and what is more important is, that it appears to be plainly in conflict with a number of local as well as English authorities, both prior and subsequent to it, which have established the rule that a court in determining or deciding the issues in a case, is in the last resort, bound to have regard to and decide only those issues, or material controversial facts, of which notice has been given in or by the pleading of a party and thereby raised for determination. So in Bright v. Bright22 the plaintiff claimed against her husband a declaration that certain household furniture and personal effects were her separate property, and she claimed also their return and damages for their detention. The cause of action arose during April-May 1932 but the action was not instituted until 1940-41 and the husband pleaded that the claim was barred by the Statute of Limitation Act, 1623.23 In the course of arguments as to whether the plea was sustainable or not her counsel contended that this plea was not available to the husband as he was her trustee in respect of the property claimed. The trial judge held that24:
“There is no averment in the Statement of Claim that in regard to any of these goods the legal estate of ownership was not in the plaintiff but in her husband as her trustee at the date the cause of action arose or afterwards. It is averred that the goods in question, at the date when the cause of action arose, were her furniture and personal ‘effects’. She says they were hers in fact, and by law they could be at that date so there is no reason why the Court should not accept her allegation of ownership at the material date.”
He then held that the Statute of Limitation applied and dismissed the action. Appeal was thereupon lodged on behalf of the wife on the main ground that the court should have upheld the contention put forward on her behalf that her husband was her trustee and that the Statute of Limitation was therefore inapplicable. The Court of Appeal held that25:
“The fact, if it was a fact, that defendant was plaintiff’s trustee was not only material but vital to the plaintiff’s case; if she intended to rely upon it, it was essential that she should aver it in her pleading;…. This being so, we agree with the learned Chief Justice that it was not competent to plaintiff’s counsel to argue the point of law involved on the basis that defendant was plaintiff’s trustee, but that he was bound by the pleadings.”
Again in Oloto v. Williams26 where the statement of facts contained in the headnote reads:
“The Plaintiff-Respondent claimed a declaration that he and his family were the owners of certain land; in the writ he stated that the land had not been alienated to any other party; and in the statement of claim he alleged that the ownership of the land was free of any tenancy under native law and custom. The Defendants-Appellants in their defence alleged that their ancestor was a grantee in respect of the land and that their family had been in possession ever since the date of the grant. The trial Judge was satisfied that the defendants’ statement of these facts was correct, and that the plaintiff’s statement of the facts was incorrect; but he gave judgment for the plaintiff, on the ground that the right enjoyed by the defendants under the grant was a right of occupation under native law and custom which left a reversionary right of ownership in the plaintiff.”
The defendants’ appeal was allowed, the court observing as follows27:
“The learned trial Judge found that `the plaintiff’s right of reversion remained’, and that this right of reversion was the same thing as the ownership by native law and custom claimed in the writ. We are of opinion that these findings as to the reversionary right should not have been made in this suit since the very important question of whether or not the plaintiff has such a reversionary right was not in issue on the pleadings and the defendants therefore did not necessarily put forward the full defence which might be made to such a claim if it had been definitely put in issue. We therefore set aside these findings…”
But the strongest of the cases in conflict with Abowaba v. Adeshina (supra) appears to me to be the English House of Lords case of Esso Petroleum Co. v. Southport Corporation28 in which the point in question with which we are here concerned, namely, whether the court can legitimately decide on a question or issue of fact not specifically raised by the pleadings, merely because there is evidence of it before the court, was clearly raised and decided in the negative. The material facts of that case are as set out in the headnote29:
“In December, 1950, an oil tanker belonging to the appellants bound from Liverpool to Preston developed a steering fault when approaching an estuary in rough weather. In view of the weather and the danger of turning round, the master decided to continue into the channel. Soon after, the vessel took a heavy sheer to starboard and ran aground on a revetment wall. To save the vessel and crew from grave danger, the master discharged a considerable quantity of oil to lighten the vessel, which oil became deposited on the respondents’ foreshore, causing damage. In an action for trespass, nuisance and negligence brought by the respondents against the appellants and the master, the respondents pleaded as negligence, negligent navigation by the master and no more, and no complaint was made of any other act or default on the part of the appellants.”
Evidence, however, emerged from the trial which went to establish that the stern-frame of the vessel had sustained a fracture during the course of the vessel’s journey before it reached the channel, in respect of which evidence the trial judge commented that it was not improbable that the stern-frame, if in sound condition, could have been fractured merely by the heavy seas; and by reason of which evidence counsel for respondents contended that there was an onus on the appellants to show inevitable accident, as thus, e.g. that the stern-frame of the vessel was in sound condition at the start of the voyage. The trial judge found that there was no trespass or nuisance, and that the master had not been negligent and, therefore, that the appellants had also not been negligent. He expressed his conclusion that no explanation had been forthcoming to account for the fracture of the stern-frame, which fracture, he found affected the steering and caused the vessel to run aground. He, however, ignored or did not accept the respondents’ counsel’s contention that there was an onus on the appellants to show inevitable accident, and he gave judgment for the master and the appellants. On appeal to the Court of Appeal, however, a majority upheld the contention of counsel for the corporation, appellants before the appeal court, that there was an onus on the appellants to show inevitable accident and held that the onus was not discharged, and therefore allowed the appeal and set aside the judgment of the trial judge. On a further appeal to the House of Lords, it was held that30:
“(i) the findings of the trial judge had negatived all allegations of negligence against the master and, as the relevant cause of action pleaded against the appellants was vicarious responsibility for the master’s negligence, the action must fail against them, and
(ii) (by Lord Morton of Henryton and Lord Radcliffe, Lord Normand concurring) the contention of the respondents that the onus was on the appellants to show inevitable accident was not open to the respondents as it rested on acts or default which were not raised by the pleadings.The Merchant Prince ([1892] P. 9, 179) considered and distinguished.”
The following extracts of views of four of the learned lords who heard the appeal, on the question with which we are for the time being concerned, are peculiarly pertinent and instructive. Earl Jowitt stated as follows31:
“In the present case, every allegation of negligence has been answered by the finding of the judge, and there was no allegation of unseaworthiness. That being so, I do not think that the present appellants,….can be held responsible because they did not negative some possible case which had never been alleged against them in the pleadings or made against them in the course of the trial.”
Lord Morton stated as follows32:
“The first submission of counsel for the appellants was that, having regard to the pleadings and to the fact that the Court of Appeal affirmed the judgment of Devlin, J., in favour of the master, that court should also have affirmed the judgment of the learned judge in favour of the appellants, instead of deciding against them on an issue which was not raised by the pleadings.”
Lord Radcliffe’s expression of views was this33:
“My Lords, I think that this case ought to be decided in accordance with the pleadings. If it is, I am of opinion, as was the trial judge, that the respondents failed to establish any claim to relief that was valid in law. If it is not, we might do better justice to the respondents—I cannot tell, since the evidence is incomplete—but I am certain that we should do worse justice to the appellants, since, in my view, they were entitled to conduct the case and confine their evidence in reliance on the further and better particulars of para.2 of the statement of claim which had been delivered by the respondents. It seems to me that it is the purpose of such particulars that they should help to define the issues, and to indicate to the party who asks for them how much of the range of his possible evidence will be relevant, and how much irrelevant, to those issues. Proper use of them shortens the hearing and reduces costs. But, if an appellate court is to treat
reliance on them as pedantry or mere formalism, I do not see what part they have to play in our trial system….In my view, where the question is, as here, as to sufficiency of evidence, the state of the pleadings is of more importance than the way in which the case is shaped in argument. It is clear that no application was made to the trial judge to amend the pleadings by altering or extending the particulars, and it is equally clear from what he says at the close of his judgment that he did not regard himself as having expressly or impliedly authorised any such amendment. That being so, I am of opinion that the appellants called as much evidence as was required of them to defend themselves from the charges of negligence that were made in this
case.”
Lord Normand stated34:
“I wish to associate myself with the observations of my noble and learned friend Lord Radcliffe, on the value of pleadings. To condemn a party on a ground of which no fair notice has been given may be as great a denial of justice as to condemn him on a ground on which his evidence has been improperly excluded.”
It is hardly necessary to point out that our Civil Procedure Rules being in pari materia with the English Supreme Court Rules, this most important judgment by such a composition of outstanding and distinguished law lords must cast the greatest possible doubt on the proposition advanced without any supporting authority by the learned judges of the former West African Court of Appeal who dealt with Abowaba v. Adeshina (supra). In the light, therefore, of those cases in conflict with Abowaba v. Adeshina (supra) I am satisfied that the question raised by counsel for the plaintiff in his address and accepted for consideration by the learned trial judge by whom it was approved or adopted, namely, that although admittedly the recording of the plaintiff’s alleged or so-called songs and sales thereof which were pleaded in the statement of claim was barred by the provision of section 10 of the Copyright Act, 1911, (supra) nevertheless there were sales of the records within a period of three years from the date of plaintiff’s writ in respect of which the plaintiff was entitled to maintain his action, did not arise for consideration at all because it was never raised in a formal reply.
Assuming, however, that the question did arise for consideration, then it is clear the plaintiff would have the onus of establishing it affirmatively. The learned judge, however, was not able to found on any concrete or positive evidence at all adduced by the plaintiff himself or either of his two witnesses, as can be seen from his finding hereinbefore set out that it is from defendants’ evidence that it is proved that the defendants continued to sell those records until the year 1961 when they cleared their stock by auction at a clearance sale. It would appear, however, that the learned judge, with respect, mis-read the evidence of the company’s representative. His evidence as recorded by the learned judge himself was: “The defendants are selling records—but are not selling any of the twelve records the subject-matter of this case called Senafone records as per exhibit 4.” I have underlined the last sentence to emphasize it, since the learned judge in his finding stated that the evidence was that the defendants “continued to sell those [i.e., the twelve records, until the year 1961.]” Nowhere in the evidence of the manager did this latter statement appear that the company continued to sell the twelve records, till 1961. After speaking of the twelve records specifically, he went on to speak of Senafone records in general shown in exhibit 4, as he had been doing throughout the course of his evidence-in-chief. He then stated, “Defendants stopped selling Senaphone records in 1960.” He appears to have been shown two records in respect of which he stated, “These two records are Senafone records.” But there is no indication in the learned judge’s notes as to what or which two records were shown to him. He then went on to make the statement, on which the
learned judge appears to have relied in making his finding already referred to, i.e. “In the year 1961 the defendants sold by auction as clearance sale all their stock of Senafone records and they were all sold in 1961. The defendants closed down the recording because it was not a profitable business.” The context, however, makes it abundantly clear that the witness was referring to the whole Senafone recording business and the whole stock of Senafone records shown in the booklet exhibit 4; and surely then, it became obligatory on counsel for the plaintiff, if he wanted the court to act on that evidence as meaning that the stock sold at the clearance sale included all or some of the twelve records, to elicit that fact by the necessary questions in his cross-examination of the manager. There was, however, not a single question in cross-examination to bring out and establish the material fact that the sale of stock of Senafone records by auction clearance sale in 1961 included all or any of the twelve records and I am satisfied that the learned judge acted per incuriam in assuming the fact in favour of the plaintiff, who together with his witnesses did not adduce any concrete or positive evidence to establish that fact. His findings already referred to, in my view, cannot therefore be supported.
There remains, lastly, his conclusion, (here again by unfortunately accepting the plaintiff’s counsel’s submission without adequately examining and checking the accuracy of same) that because the defendant company did not admit a fact set out in a notice to admit facts, they are in law deemed to have admitted that fact. This refers to his conclusion that, “Since the defendants upon being asked to admit the specific fact that they had produced and sold 5,000 copies each of those twelve songs, had failed either to admit or deny that fact, they must be taken to have admitted that fact.” Learned counsel for the plaintiff before us has now admitted that the proper and true consequence of such an eventuality as failing to admit a fact in a formal notice is that the defaulting party has to bear any extra cost of proving that fact.
Finally, it has to be pointed out that the learned judge’s judgment holding that in his view there has been breach of copyright, is the final judgment in the action, and appeal against same was properly commenced by the notice of appeal. The subsequent judgment or order by which he assessed damages, granted reliefs, and awarded costs, is an interlocutory judgment appealable by special leave which however, the defendants erroneously failed to obtain. (See Ababio v. Turkson.35). The court, however, in exercise of its powers under rule 30 of the Supreme Court Rules, 1962,36 whereby it is provided that, “No interlocutory judgment or order from which there has been no appeal shall operate so as to bar or prejudice the Court from giving such decision upon the appeal as may seem just” has had to deal also with the learned judge’s conclusions in that interlocutory judgment.
In the result I would allow the appeal and set aside the judgment in favour of the plaintiff-respondent; and in the place thereof substitute a judgment for the defendants-appellants dismissing the plaintiff’s claim. I would allow the appellants the costs of the appeal assessed at £86 15s. 6d. and the costs of the trial in the court below to be taxed.
JUDGMENT OF SARKODEE-ADOO CJ
I agree.
JUDGMENT OF BLAY JSC
I also agree.
DECISION
Appeal allowed.
T. G. K.
