Without prejudice on the question of interest the Defendant‘s Counsel prays that the court
exercises its discretion against an award of interest in accordance with section 26 of the Civil
Procedure Act. He further contends that the Defendant's actions were intended to protect the
environment which is a cause intended to benefit all citizens. Secondly it is a cause that is
consistent with article 39 of the constitution of the Republic of Uganda which entitles every
citizen to a clean and healthy environment. In the premises of the Defendant's prayer is that the
Plaintiffs action is dismissed with costs.
In rejoinder, the Plaintiff's Counsel contends that section 45 (3) of the Copyright and
Neighbouring Rights Act does not prescribe the basis for assessment of damages. It does not deal
with damages but with injunctions. He contends that it is not usual that loss suffered due to
infringement of copyright will be quantifiable in monetary terms so as to be claimed as special
damages. Consequently Counsel reiterated submissions that the claim should be in general
damages.
As far as exemplary damages are concerned, the Defendant did not think that they needed to ask
the Plaintiff for her consent though they knew that she was the copyright holder and therefore
acted recklessly and in total disregard of her feeling or interests. Even after being served with a
notice of intention to sue they acted dismissively of her claims. The Defendant has further gone
on to insist that the Plaintiff has no copyright in the song even when DW1 testified that the
Plaintiff did have copyright. The conduct amounted to aggravation for which the Plaintiff is
entitled to punitive/aggravated damages. The second category for the award of general damages
which is that the conduct of the Defendant was cynical disregard of the claimant‘s right and
calculated to make profit which would exceed the damages likely to be awarded is applicable.
The case of Acode versus Attorney General Miscellaneous Cause No. 1 of 2004 is irrelevant
because at page 14 it is held that courts should be hesitant to award costs in matters which
involve parties who are ignorant, poor or marginalised members of society. The Defendant is a
world-class NGO liberally funded by both the local and international community as readily
admitted by DW1.
Judgment
I have duly considered the pleadings of the Plaintiff and the Defendant as well as the agreed facts
and documents together with the written submissions of Counsels and the applicable law.
Pursuant to the procedural requirement to hold a mandatory scheduling conference in which the
parties would inform the court on the points of agreement and disagreement, Counsels filed a
joint scheduling memorandum agreeing to certain basic facts. Before making reference to the
agreed facts and points of disagreement, the agreed facts and points of disagreement are arrived
at under the provisions of Order 12 rule 1 of the Civil Procedure Rules. It provides that the court
shall hold a scheduling conference to sort out points of agreement and disagreement, the
possibility of mediation, arbitration and any other form of settlement after closure of pleadings
namely within seven days after the order on delivery of interrogatories and discoveries or where