seek the Plaintiff's permission is an issue fit for trial disclosed by the plaint.
Furthermore the Plaintiff further stated that the Defendant’s unilateral actions in
taking a benefit without consideration would entitle him to claim for usage fees
for eight months. Additionally the court ruled that the Plaintiff was seeking
declaratory orders and in terms of Order 2 rule 9 of the Civil Procedure Rules, and
judicial precedents reviewed, the Plaintiff's action for declaratory relief is not
open to objection even if it is not possible to seek consequential relief. In fact
even if the Plaintiff cannot establish a legal cause of action, his action may not be
liable to be dismissed or struck out merely on account that he seeks a declaratory
order. It is therefore strange that both Counsels of the Parties addressed the
court on whether the Plaint disclosed a cause of action. I think the issue to be
considered is whether the Plaintiff is entitled to the reliefs on the basis of the
assertions in the plaint i.e. whether the Plaintiff is entitled to his images and
whether his consent was necessary for the use of those images in the Defendant's
advertisements on national television and print media on a point of law before
dealing with questions of fact.
Furthermore I agree with the Plaintiff's Counsel in his submissions in rejoinder
that because the Defendant relied on the question of consent and authorisation
to use the Plaintiff’s images, issue number one has partially been conceded to.
The issue has been determined in as far as the question of whether the Plaintiff’s
action as disclosed in the pleadings, discloses a cause of action has already been
decided. What is left for consideration is whether on a point of law and on the
evidence adduced, the Plaintiff's permission was necessary for the Defendant to
use the Plaintiff’s photos and audiovisual recording on television telecasts and
other print media, which fact of use is not denied by the Defendant.
The Plaintiff alleges infringement of his Constitutional rights as well as his rights
under the Copyright and Neighbouring Rights Act. I will deal with his alleged
constitutional rights after dealing with his rights, if any, under the Copyright and
Neighbouring Rights Act.
In paragraph 3 of the plaint the Plaintiff’s claim against the Defendant is for
declaratory orders that the Defendant is unfairly benefiting from the use of his
Decision of Hon. Mr. Justice Christopher Madrama
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