I have carefully considered the defence as far as the written statement of defence is concerned
and the submissions of the Defendant‘s Counsel. The submission of the Defendants Counsel is
based on the testimony of PW1 in cross examination that she was commissioned by the British
Council to produce the song "let's go green". On the basis of that contention it is submitted that
the British Council is the one with the copyright and there was no evidence in writing of the
assignment or transfer of the copyright to the Plaintiff. The Commissioner of the works is the
copyright owner. On the basis of the submission that the copyright belongs to the Commissioner
of the works, he contended that the Plaintiff‘s suit discloses no cause of action against the
Defendant and that it ought to be dismissed on that basis. The Plaintiff's Counsel disagreed on
the ground that this was a departure from the pleadings and secondly a departure from the
scheduling memorandum. As far as the written statement of defence is concerned paragraph 5
thereof avers that the Plaintiffs claim is denied in total and the Defendant shall at the
commencement of the trial raise a preliminary objection that the suit is misconceived and raises
no cause of action. However not preliminary objection to the suit was raised at the
commencement of the hearing. Apart from paragraph 6 of the written statement of defence the
rest of the averments in the written statement of defence are denials. I will reproduce paragraph 6
of the defence which avers as follows:
"The contents of paragraph 4 (a – h) of the plaint are denied in toto and the Plaintiff shall
be put to strict proof thereof.
a) In specific response to paragraph 4 (e) of the plaint, the Defendant shall aver that an
unsubstantial portion of the Plaintiffs work was used, evidence of which shall be
provided at the trial.
b) Paragraphs 4 (f, g and h) are denied in toto the Plaintiff shall be put to strict proof
thereof."
Subsequently and in accordance with Order 12 rule 1 of the Civil Procedure Rules the parties
filed a joint scheduling memorandum agreeing that the Plaintiff is the composer, producer and
copyright holder of the musical production/recording (song) entitled "let's go green". In terms of
Order 15 rule 1 (2) there is no material proposition of fact or law constituting a defence to the
effect that the Plaintiff is not the copyright owner of the song in question. Quite to the contrary it
is an agreed fact in the writing and under the hand of the Defendant‘s Counsel and the Plaintiff's
Counsel. Being an admitted fact an interesting proposition of law arises. Can the Plaintiff
disprove his/her own facts which have been admitted through his or her own testimony? Facts
which are admitted need not be proved under section 57 of the Evidence Act. In fact under Order
12 rule 1 of the Civil Procedure Rules during the scheduling conference where that is a point of
agreement on matters of fact, it is provided under Order 12 rule 1 (2) that orders shall
immediately be made in accordance with rules 6 and 7 of Order 15. In other words agreements
entered into during the scheduling conference have immediate ramifications. The agreements
may influence the mode of trial and even how to deal with facts that may be in controversy and