where the Plaintiff cannot prove actual damage and holds that the correct measure of damages is
what the Plaintiff would have charged for the use of his or her property by the Defendant.
I am persuaded by the approach because where there is no evidence of how much loss the
Plaintiff suffered, the court cannot presume that loss. The general rule is that the Plaintiff can
only recover the actual loss suffered which is proved on the balance of probabilities. In the case
of Wrotham Park Estate Company v Parkside Homes Ltd and others Wrotham Park
Estate Company v Parkside Homes Ltd [1974] 2 All ER 321 at page 340 Brightman J quotes
Lord Denning on the principle:
―It will be sufficient to read these extracts from the judgment of Denning LJ ([1952] 1 All
ER at 800, [1952] 2 QB at 253):
‗In assessing damages, whether for a breach of contract or for a tort, the general
rule is that the Plaintiff recovers the loss he has suffered, no more and no less.
This rule is, however, often departed from.‘...‖
In conclusion the question is how much the Plaintiff would have charged the Defendant for the
use of the song. There is no evidence as to how much the Plaintiff would have earned. Secondly I
will take into account the fact that the Plaintiff was unable to perform the song for a period of
over a year. I have duly considered the fact that under section 47 of the Copyright and
Neighbouring Rights Act it is an offence to publish, distribute or broadcast or communicate the
work of the copyright owner to the public without a licence or authorisation. However no
criminal proceedings were brought against the Defendant‘s officials. Secondly section 50 of the
Copyright and Neighbouring Rights Act prescribes penalties and compensation for copyright
infringement upon conviction for an offence under the Act. The principles applied in addition to
the prescribed punishment are relevant to the award of damages. One of the remedies is that all
the sums of money arising out of the offence and received by the offender are to be accounted for
by the offender and paid to the person entitled to economic rights under the Act. Secondly the
infringing materials are to be forfeited and disposed of as the court may direct. Thirdly the use of
the material in a manner prejudicial to the honour and reputation of the author shall be deemed to
be an infringement of the right of the owner of the copyright owner under section 46 (2) of the
Copyright and Neighbouring Rights Act.
The evidence is that the song was used at a time when riots took place on the issue of degazetting of Namanve Forest. DW1 in cross examination admitted that time there were ―Mabira
riots‖. (―Mabira‖ is another forest reserve.) In those riots one person died. DW1 denied that their
approach was confrontational and testified that they only called on members of Public to talk to
their members of Parliament. PW1 on the other hand testified that the tone of the jingo was harsh
and she objected to it. It was harsh and hard hitting. In her testimony in chief she described it as a
clarion call to all and sundry to rise up and take action to combat the intended give away. PW1
was aggrieved that she was confronted by Hon. Maria Mutagamba the Minister for