Plaintiff‘s testimony is that she used to be paid an average of Uganda shillings 3,000,000/= for
each performance. The Plaintiff‘s Counsel prayed for an award of Uganda shillings
50,000,000/= as general damages while the Defendants Counsel submitted that damages were
too remote and ought not to be awarded. He relied on the non commercial purpose of the jingle
and the fact that it was used in a public interest campaign. Counsel did not suggest any figure in
case his submissions for dismissal of the claim did not succeed.
Considering the fact that the Plaintiff is also involved in conservation of the environment, and to
that extent the damage caused by the Defendant‘s use could be mitigated, an award of general
damages in the sum of Uganda shillings 25,000,000/= would be just compensation for copyright
infringement taking into account the circumstances discussed above.
Exemplary/punitive/aggravated damages
According to Osborn's Concise Law Dictionary, exemplary damages are damages awarded in
relation to certain tortious acts (such as defamation, intimidation and trespass) but not for breach
of contract. In contrast to aggravated damages which are compensatory in nature, such damages
carry a punitive aim at both retribution and deterrence for the wrongdoer and others who might
be considering the same or similar conduct. In the case of Obongo and another v Municipal
Council of Kisumu [1971] 1 EA 91 the Court of Appeal sitting at Nairobi per Spry VP at page
94 considered the definition of exemplary damages and approved the case of Rookes vs.
Barnard [1964] A.C. 1129 and by way of summary Spry VP held:
―In the first place, it was held that exemplary damages for tort may only be awarded in
two classes of case (apart from any case where it is authorized by statute): these are, first,
where there is oppressive, arbitrary or unconstitutional action by the servants of the
government and, secondly, where the Defendant‘s conduct was calculated to procure him
some benefit, not necessarily financial, at the expense of the Plaintiff. As regards the
actual award, the Plaintiff must have suffered as a result of the punishable behaviour; the
punishment imposed must not exceed what would be likely to have been imposed in
criminal proceedings if the conduct were criminal; and the means of the parties and
everything which aggravates or mitigates the Defendant‘s conduct is to be taken into
account. It will be seen that the House took the firm view that exemplary damages are
penal, not consolatory as had sometimes been suggested‖.
Firstly, exemplary damages would be awarded for arbitrary or unconstitutional action by
government officials. Secondly, it is awarded where the wrongful conduct of the Defendant is
calculated to procure some benefit at the expense of the Plaintiff. Lastly the Plaintiff must have
suffered as a result of the punishable behaviour. Furthermore the conduct of the Defendant may
be criminal in nature. Consequently even in a claim for exemplary damages, the Plaintiff must
prove that it has suffered from the acts of the Defendant.