that this honourable court is unable to reach a finding as to the rights of ownership that the
British Council has in the works in issue because the Plaintiff did not adduce any documentary
evidence to this effect, nor did she call any witnesses from the British Council to testify on the
issue.
With regard to the case of Prof G Kakoma versus Attorney General HCCS No 197 of 2008,
the case was wrongly decided because at page 4 of the judgement it was held that copyright in
the commissioned work belongs to the author in the absence of an express or implied term to the
contrary. Section 8 (1) (b) cited clearly provides that the Commissioner's right to the works can
only be vitiated by a specific contract to this effect. A proper construction of the law on
commissioned copyright works therefore renders the Plaintiff incapable of enforcing any rights
over the song "let's go Green" and the suit should therefore be dismissed for failure to disclose a
cause of action against the Defendant.
As far as proof of the audio works is concerned the Plaintiff testified that the song was sung by
her and another person, Jocelyn Keko. She claims to be the sole copyright owner of the song in
question and had paid Jocelyn off as far as her contribution to the song is concerned. Section 35
of the Copyright and Neighbouring Rights Act provides that any contract relating to the
exploitation of the author's right shall be in writing and signed or marked by the parties to the
contract. In the premises the Defendant‘s Counsel maintains that the Plaintiff was obliged to
adduce documentary proof to support her claim to have undivided title to the copyright in the
song "let's go Green". Counsel further contends that failure to adduce evidence means that the
Plaintiff has no locus standi to bring this action. The co-author should have been joined as a coPlaintiff. Failure to do so is prejudicial to the Defendant as any judgement against the Defendant
does not prevent the co-owner from bringing another suit against the Defendant over the same
alleged infringement. Furthermore if ownership in another owner to the copyright exists, she
may have an interest in a different remedy i.e. payment of royalties, rather than damages. Based
on this analysis the Defendants Counsel maintains that the Plaintiff has failed to prove her
exclusive claim to ownership of the song "let's go Green".
The Defendants Counsel further wondered whether any judgement entered would be res judicata
against other parties such as the British Council and the other author. There are two parties
presented by PW1 who could potentially litigate similar issues against the Defendant because the
Plaintiff's testimony is inconclusive on the question of title of ownership for the copyright. These
are the British Council as well as the artist Jocelyn Keko.
Though the parties agreed to the fact that the Plaintiff is the owner of the copyright in the song
"let's go Green", it would be a travesty of justice for PW1's testimony on oath seriously
contradicting this position to be ignored. The purpose of agreeing to facts during scheduling does
not of itself override the role of evidence voluntarily adduced during the trial. The function of
evidence voluntarily adduced during the trial is to corroborate the facts as set out by the parties.
To this extent Counsel prayed that the Plaintiff‘s claim should be dismissed with costs to the