As regards Special Damages, the general rule is that special damages must be specifically
pleaded and strictly proved. In Jivanji v Sanyo co. ltd [2003] EA 84 court held that;
“Its trite law that special damages must be pleaded and then strictly
proved in order for a plaintiff to succeed on a claim for specific
damages.”
Counsel for the plaintiff did not submit on this prayer neither did he adduce evidence to
prove special damages that had been prayed for. In that regard I decline to award them.
Given the difficulty of proving damages in intellectual properties cases perhaps the time has
come for our legislators to follow the example of some States in USA where it is possible for
the court to award Statutory damages in the alternative.
Account of profits
During the trial there was no discovery made as to the sales and profits made from the
infringement of the artworks. Furthermore Counsel for the plaintiff did not submit on this
claim either. Probably this is not surprising given the quality of business record keeping in
Uganda that makes this remedy hard to pursue and prove.
Injunction
Counsel for the plaintiff relied on the text COPINGER & SKONE JAMES ON COPY RIGHT
13th edition London, sweet and Maxwell 1991 at page 339 where it is stated that if
the plaintiff succeeds at the trial and establishes infringement of copyright he will normally
be entitled to a permanent injunction to restrain future infringements. Counsel avers that the
plaintiff through the evidence has already established infringement of her copy right by the
defendant.
Basing on my earlier findings majorly based on the comparisons made between the plaintiff
and defendants pieces and on the balance of probabilities I grant an injunction against the
defendant from continuing to infringe the copyright of the plaintiff.
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