Counsel for the defendant submitted that a power of attorney should have been given for the suit
to be commenced and that the suit should have been commenced in the name of the principal
and not the agent. Relying on Order 7 rule 14 of the CPR and the authority of Johan Sebataana
v Abanenamar Yorokam Civil Suit No. 99 of 2005, it was argued for the defendant that the
power of attorney should have been produced in court and filed together with the plaint as
without it the attorneys would have no authority to sue the defendant.
This court was asked to follow the above decisions since PW1 confirmed that no power of
attorney was given to the plaintiff and thus none was attached to the plaint.
Based on the evidence of PW3 that Exhibit P6 was not registered and is a private document, it
was argued further that it lacked the basic legal quality to confer rights to sue because it was
neither signed as a deed, attested to nor registered, a process that a power of attorney must go
through. According to counsel for the defendant the parties are mandated to follow the law
regardless of what they may privately agree.
Counsel cited the case of Mrs. Tereza Beatrice Nalumaga Nyaika v Prince Patrick Olimi
Kaboyo C.S No. DR MFP 12/90 where the court rejected a document that purported to be a
power of attorney as not conferring authority to an attorney to conduct a case on another’s behalf
because the instrument was not in the form of deed poll, was never attested, sealed nor
registered with the registrar of documents.
It was also submitted that local law would supersede the provisions of the contract although no
authority was cited for that argument.
Counsel for the defendant also took the view that section 58(d) of the Copyright and
Neighboring Rights Act 2006 (hereinafter called the Act) does not give powers to substitute the
name of the plaintiff nor does it amend the rules as to who can sue or who has locus to sue.
Counsel for the defendant argued that the case of Performing Rights Society Ltd v Grand
Theatres Ltd and another (supra) was distinguishable and is irrelevant in establishing whether
the plaintiff has a right to bring this suit as it concerns the legal effect of Deeds of Assignment.
Counsel for the plaintiff submitted in rejoinder basing on PW1’s testimony that the plaintiff was
not an agent and was acting within the obligations it assumed under the reciprocal agreement to
enforce the rights of the PRS (UK).
It was submitted further and rightly so in my view, that there is no legal requirement for
registration of reciprocal agreement under the Act thus its non registration has no bearing on its
validity.
4