We are of the opinion that indeed the learned trial judge did an
exhaustive examination of the case law and principles covering fair
practice in evaluating what the appellant had done with the
Respondent’s work before concluding that the:
“the Defendant infringed the copyright in Plaintiff’s work in the use of it
within “Gateway to English” and the use to which the Plaintiff’s work
was put did not constitute a permitted use, and the mode of presentation
did not constitute fair practice.”
The learned trial judge found as a fact that there is no controversy
about the Plaintiff’s work being protected by the Copyright Act.”
The learned Court of Appeal judge then proceeds to apply the “trite law” that
where the trial judge’s findings are supported by the evidence on record, an
appellate court should not disturb those findings.
The Court of Appeal,
therefore, decides not to disturb the learned trial judge’s findings of fact. By
doing this, the Court clearly “failed to address the import of the provision in
section 2 of Act 690 that the respondent did not have copyright in the plot of
Woes of the African Mother or a summary of it, as in Gateway to English for
Junior Secondary Schools”, which is the grievance set out in Additional Ground
B. This grievance is indubitably well-founded and the Court of Appeal’s error
makes it inevitable that this appeal be allowed.
Conclusion
In my discussion earlier of section 2 of Act 690, I have demonstrated that
there is a preliminary question of law which has to be established before any
of the findings of fact which the learned trial judge purported to make can
validly be made. I have found that what was replicated in the Summary was
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