CIVIL CASE NO 180 of 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) CIVIL CASE NO. 180 OF 2020 BETWEEN DOTTO BERNAD BWAKEYA (LAMECK DITTO)............................. PLAINTIFF VERSUS MULTICHOICE TANZANIA LIMITED........................................ DEFENDANT JUDGMENT S.M. MAGHIMBI. J: A talent is a natural aptitude that is unique in different humans and in his creations, God endow us with different talents. Some of these talents form an integral part of our life as a source of income, creation of wealth and exposure to the world. However, the effort to put this talent into something tangible, valuable and useful should not be left uncaged, it must be protected. In this case the protection of the talent and creativity that is going to take us through the preceding several pages of analysis of evidence, reasoning and verdict is a copyrighted artistic work in form of music. The plaintiff claim that the defendant has infringed his copyrighted work through an unauthorised use of his song "Nchi Yangu" during the African Cup of Nations (AfCON) campaigns in 2019. i Given the scarcity of cases involving copyright in our country, at this initial stage it is best that the definition of a copyright is provided so as to facilitate smooth analysis of facts and evidence in determination of this suit. A copyright (or author's right) is a legal term used to describe the rights that creators have over their literary and artistic works. Works covered by copyright range from books, music, paintings, sculpture, and films, to computer programs, databases, advertisements, maps, and technical drawings. Section 4 of the Copyright and Neighboring Rights Act, Cap. 218 R.E. 200 (as amended) ("the Act") defines a copyright as the sole legal right to print, publish, perform, film or record a literary or artistic or musical work. In the case of Tanzania-china Friendship Textile Company Ltd vs Nida Textile Mills (T) Ltd (NIDA) (Civil Case 106 of 2020) [2022] TZHC 13134 (28 September 2022), at page 8 a copyright was defined as: "Simply stated, therefore, a copyright is a head o f intellectual property right that protects the original works o f authorship the moment the author fixes the work in a tangible form o f expression." Copyright protection extends only to expressions made in tangible forms and not ideas, procedures, methods of operation or mathematical concepts as such. Therefore, Copyright is a type of intellectual property that protects original works of authorship soon as an author fixes the work in a tangible form of expression. Even though one's work is technically protected by copyright automatically from the moment it's created and made in tangible form, registration of the copyright serves as a conclusive proof of the copyrighted work and is what actually enables the copyright's enforcement. Registering a copyright before any legal action occurs, ideally within a few months of the work's creation, helps its effectiveness, although non-registration does not extinguish the owners right to be protected under the Act. Putting a copyright on the public record also serves to inform other parties of one's claim, potentially dissuading them from infringement or encouraging them to seek licensing. In the current suit, the basis of the claim is an infringement of a copyrighted musical work. The plaintiff sued the defendant moving the court for declaratory orders that the Defendant has infringed the Plaintiff's copyrighted work, a song namely "Nchi Yangu and therefore be ordered to pay the plaintiff a sum of Tanzania Shillings six Billion (TZS 6,000,000,000/=) being special damages arising from the infringement and profits enjoyed by the Defendant. He also prayed for interest at the commercial rate of 25% per annum from the date when the cause of action arose to the date of judgment; interest on the decretal at court rate from the date of judgment to the date of full settlement; General damages to the tune of TZS 200,000,000; Costs of this suit and Any other reliefs this court may deem fit and just to grant. In his detailed plaint, the Plaintiff prays for judgment and decree against the Defendant as follows: (a) Declaration that the defendant has infringed the Plaintiff's copyrighted work, a song namely "Nchi Yangu"; (b) An order payment of the sum of Tanzania Shillings six Billion (TZS 6,000,000,000/=) being special damages arising from the infringement and profits enjoyed by the Defendant; (c) An order for payment of interest on item (b) above at the commercial rate of 25% per annum from the date when the cause of action arose to the date of judgment; (d) Interest on the decretal sum at commercial rate from the date of judgement to the date of full payment; (e) General damages to the tune of TZS 200,000,000/=; (f) Cost for this suit, and . (g)Any other reliefs that his Honourable Courtshall deem just and equitable to grant. An attempt to mediate the parties under the provisions of Order VIIIA Rule 24 of the Civil Procedure Code, Cap. 33 R.E 2019 ("CPC") proved futile.When parties returned to the trial judge for Final Pre-Trial 4 Conference, the following issues were deliberated and agreed to be framed for determination: 1. Whether the plaintiff is the owner of the song called "Nchi yangu" 2. If the 1st issue is answered in the affirmative whether the said song was used by the defendant during the AFCON. 3. Whether usage of the plaintiff's "Nchi yangu" song by the defendant constituted or amounted to infringement of the plaintiffs copy righted work. 4. To what reliefs are the parties entitled. Before I go into the determination of the issues framed, I must first address an issue brought to the attention of this court by the plaintiff's counsel that during their cross examination, the defendant's witnesses brought a new issue on the existing relationship between the defendant and Dstv, the digital satellite television where the controversial song copyright of which is alleged to have been infringed was played. It was their submission that during hearing, the Defendant departed from her pleadings by raising a new issue that had never been pleaded before. The plaintiff's argument was that as a matter of law and practice, the said issue has been left for the Court for determination. The argument was supported by citing the decision of the Court of Appeal of Tanzania ("CAT") in the case of Air Services PLC versus Masoko Agencies (T) Limited, Civil Appeal No. 60 of 2021 where from page 22 the Court held as follows: "... the position o f the iaw is very dear and settled that, the Court is not precluded from determining an issue which though not fram ed parties le ft it upon the Court to determine. In Odd Jobs v. Mubla (supra) it was decided by the defunct East Africa Court o fAppeal, that, a Court may base its decision on an unpieaded issue if it appears from the course followed at the tria l that the issue has been le ft to the court fo r deci­ sion . In the case o f International Commercial Bank Lim ited v. Jadecam Real Estate Limited\, C ivil Appeal No 446 of2020(un- reported), in which the respondentpleaded fraud in the trans­ action revolving around a mortgage finance which was denied by the appellant but no specific issue was framed, we made it very clear that, the tria l court is not precluded from deciding an issue which, though not framed., parties le ft it fo r its de­ termination. We are settled in our m ind without any shade o f doubt that the issue o f reconciliation having been pleaded by both the appellant and the respondent, and having being dealt with ex­ tensively in evidence, was le ft to the Court for its decision and the learned the Judge rightly determined i t " On that principle, the plaintiff submitted that the issue as to whether the defendant is the owner or has any relationship with Dstv or not popped up during cross examination of the Defendants witnesses (page 102, 103, 106 of the Proceedings). The defendant did not make any sub­ missions to address the issue. Although the plaintiff's counsels went into a lengthy submission on the issue, I will not be detained much by it. Ms. Mlemeta cited the case of Air Services PLC Vs. Masoko Agencies (T) Limited, and left it upon the court to decide on the issue. Well, as I said earlier, I will not be much detained. The implication of the defendant's desertion of the having any relationship with the DStv to me sounded like an attempt to establish that the plaintiff did not have any cause of action against the defendant or has sued a wrong party. That issue cannot be left for me to decide because for the four years that the suit had been pending in this court, it was the defendant's obligation to raise the issue at a preliminary stage and not expecting to come and disown a liability at the defence stage is but an alien practice. Since the same was never pleaded by the defendant, nei­ ther was it raised as a preliminary point of objection, I will not be ob­ structed by that fact. I will proceed with my primary duty in this case, to determine whether the plaintiff's copyright was infringed by the defendant and if so to what extent is he supposed to be compensated by the de­ fendant. Having said the above, I will now proceed to determine the first issue, whether the plaintiff is the owner of the song called "Nchi yangu". In her closing submissions, Ms. Mlemeta started with the provisions of Section 4 of the Copyright and Neighbouring Rights Act, 1999 ("The Act") which defines author as the natural person who creates the work. She then sub­ mitted that protection of a copyright owner is governed under Section 5(1) which entitles a copyright author protection for their originai works of literary and artistic works under the Act by the sole fact of the creation of such works. She also cited Section 2(d) of the same Act which defines artistic works to include musical works in forms of vocal and instrumental. She then argued that one of the basic principes of copyright protection is that Copyright has automatic protection and it may not be conditional upon compliance with any formality. This means, she submitted, copyright protection is not dependent on registration or the like. She supported her position from the ratified Berne Convention for the Protection of Literary and Artistic Works of September 9,1886 ("the Berne Convention"). She concluded that copyright protection is not subject to registration at COSOTA and that a musical work amounts to literary and artistic work hence, the song NCHI YANGU authored and created by the Plaintiff is an artistic work in which he is entitled to copyright protection by the sole fact of creation of the work. The case of RSA Limited vs Hanspaul Automechs Limited and another (Commercial Case 160 of 2014) [2016] TZHCComD 2021 (20 April 2016) was also cited to support her submissions particularly where the court held that; "For a work to be protected by copyright, under section 5 o f the Copyright and the Neighbouring Rights Act, [Cap. 218 RE 2002] p la in tiff has to prove that the work is original and be­ longs to him. That means, it has to be original in the real sense and the p la in tiff has to be creator o f the real s e n s e " She hence argued that with regards to the facts in relation to the ownership of the song called 'NCHI YANGU", the plaintiff is the owner of the song Nchi Yangu. On their part, the defendant's submission cited the holding of my brother Judge, Hon. Ismail, J. (as he then was) in the case of: Tanzania China Friendship Textile Company Limited versus N1DA Textile Mills (T) Ltd (NIDA), (Supra) whereby at page 9, he quoted with authority the case of: Macmillan Aidan (T) Ltd versus Nyambari Nyangwine & 2 others, HG-Comm, Case No. 210 of 2010 (un reported) in which it was held that: "Copyrigth entails a bundle o f exclusive rights that enable the creator to control the economic use o fsuch works whereby he or she through such exclusive right may authorize or restrict inter alia, reproduction o f a work in copies, distribution o f the copies to the public, translation or adaptation o f the work" They also submitted that the range of Rights which have been conferred to an owner, under the provision of Section 4 of the Copyright and Neigh­ bouring Rights Act, (supra), have been covered under the provision of Section 5 (1), (2) and (3) of the Act. On those submissions, both the Ms. MIemeta on the one side of the plaintiff and Mr. Lyimo and Mr. Mathias for defendant embarked on sub­ missions on the evidence adduced in relation to the extence of two ver­ sions of the song. As for me, in the interest of determining the first issue only in so far as the issue whether the plaintiff owns a song titled "Nchi Yangu" is concerned, I will only determine the question of a song with a title "Nchi Yangu". This is because in all the pleadings and evidence ad­ duced, the parties were not in dispute that the plaintiff Dotto Bwakea owned a song called "Nchi Yangu" which was copyrighted in the year 2019 vide EXP3. However, as held, the issue in controversy is on the version of the song that was copyrighted and the one released for distribution and used by the defendant as shall soon be apparent. From what I have determined above, as for the remaining issues, the main issue for determination after considering the evidence and the 10 pleadings in their totality are the 2nd to the 3rd issues. However, I must admit at this point that although on 22nd November, 2023 my predecessor Judge granted the plaintiff's prayer to drop the third issue on whether the song "Nchi Yangu" used by the Defendant as alleged is the same song allegedly owned by the plaintiff, my determination of the matter will not be successful if that question is not answered. This is because as the issues established and as it will be apparent in the submissions, that has been pretty much the center of contention in the matter at hand. While the plaintiff claims copyright infringement on what was played by the de­ fendant, the defendant's defence base on the fact that the song used in their AFCON campaign is a different version from what is alleged to be owned by the plaintiff. I will therefore not do justice to the parties if I do not take those established facts in dispute in and resolve that question before my determination on whether there was an infringement of a cop­ yright. I have borrowed the above spirit from the holding of the CAT in the cited case of Air Services PLC Vs. Masoko Agencies (T) Limited whereby the CAT cited the case of O dd Jo b s Vs. M ubia where the defunct East Africa Court of Appeal held that, a Court may base its deci­ sion on an unpleaded issue if it appears from the course followed at the trial that the issue has been left to the court for decision. In that holding, ii the court made it very clear that, the trial court is not precluded from deciding an issue which, though not framed, parties left it for its determi­ nation. Therefore, much as it is not featured as an issue, I must determine the existence of the two different versions of the song which not only differ in who performed, but even number of verses present in those songs is different hence it is crucial to determine whether the two versions feature the same copyrighted song under EXP3. The rationale behind my above decision is because while the evidence adduced undisputedly establish the fact that the plaintiff owns a song called Nchi Yangu, the parties depart at the point on whether the song used by the defendant was the same song copyrighted by the plaintiff (EXP3). While the plaintiff claims to be the owner of the original lyrics, the defendant is discharging herself from any liability of infringement basing on the fact that the version of the song used in AFCON campaign is not the same original version of the song copyrighted in EXP3. Should this issue be answered in the affirmative in favour of the plaintiff, then the 2nd issue on whether the said song was used by the defendant during the AFCON and the 3rd issue on whether the usage of the plaintiff's "Nchi yangu" song by the defendant constituted or amounted to infringement of the plaintiffs copyrighted work will be 12 answered. That will then take us to a conclusion of the suit in the 4th issue on the reliefs that the parties are entitled to. In determining whether there is an infringement, a court has to satisfy itself whether the defendant, who is not the owner of the content, exploited the content of another who is a registered copyright owner, without the content owner’s permission. It entails unauthorized copying, using or creating work based on content created by someone else, in order to make a conclusive finding that a copyright has been infringed, three things must be in existence, one; is the existence original content of an artistic work created by the complainant or copyright owner which is manifested in a tangible form of expression or more conclusively, if it is registered. Two; is that the defendant must have improperly copied or used or created another work in deceit on a content created by the copyright owner and three; is that the improper copying, use or creation of the subsequent work in a content created by the copyright owner must have been done without permission or authorisation of the copyright owner. As I said above, I have to first determine whether the song "Nchi Yangu" used by the Defendant as alleged is the same song allegedly owned by the plaintiff. Basing on the facts and evidence including the displayed videos of the alleged infringed copyright, it is undisputed that 13 although there is a registered copyrighted song in EXP3, the version of the song that the defendant used in their adverts is not the one originally created by the plaintiff and registered by COSOTA (EXP3). The variations and the manner upon which the two songs were created are a bundle of relevant facts upon which a conclusion of infringement can be made or dismissed. It is now to see the evidence adduced by both parties to see the extent and the circumstances upon which the two versions of the song vary and whether the plaintiff owned both versions of the song. In his evidence, the plaintiffs evidence established that some­ times in 2015, he started the project of composing and recording of a 15 songs album whereby he chose to work with the industry's renowned pro­ ducer Emanuel James Maungu (also known as Ema the Boy) who is also PW2 in this case. That in 2017 July, he informed and sung to Emanuel, the song’s chorus melody and idea of the song 'Nchi Yangu\ Within the same month of July 2017, he completed the song and later on went to his long-term mentor Rugemarila Mutahaba, also known as Ruge, (who passed away in 2019) the then Clouds Media Group Program's Director. Ruge was to listen to the song and album idea, as he would normally do with all the plaintiff's previous works. According to the plaintiff, Ruge au­ tomatically fell in love with the song and that he acknowledged, it was not released to the public. PW1 further testified that in addition to the poten­ tial foreseeable album revenues, the song in question had the opportunity to be utilized by brands and/ or national patriotism campaigns. Under para 7 of his plaint, the plaintiff alleges that in 2018 the song "Nchi Yangu" was licensed to Tanzania All Stars whereas in collabo­ ration with other music artists, a cover of tire song was made and released to celebrate the Urithi Festival Celebrating our Heritage festival. The song was played in various medias i.e. Clouds Media YouTube channel, TZ etc. in which the Plaintiff received remuneration thereof. Thus, the Plaintiff had more expectation of obtaining licensing opportunities and revenue out of the song. In his testimony, the plaintiff also testified that on 14th August 2018, Ruge requested his presence at his office, Clouds Media Group, Mikocheni and in the said meeting, he raised the agenda of the Government's patri­ otic initiative via the Ministry of Natural Resources and Tourism. Further­ more, he opined to use the song NCHI YANGU as the Government's na­ tional campaign's song to be sung and featured by several renowned local artists. In this project, PWl's role was music director, of the second ver­ sion of his original song NCHI YANGU. PW1 was overwhelmed by the idea that his song was to be utilized by the Government and was launched 15 during the live television broadcasting launch of the Urithi Heritage Festi­ val (also known as Urithi Festival) by the then Vice President of the United Republic of Tanzania, H.E Dr. Sarnia Suluhu Hassan, September 2018, Jamuhuri Stadium, Dodoma. That his song was performed by Rogers (the burst), Jaymelody, Golden (the burst), Jux, Bright, Marioo, Amini, Lulu Diva, Karen, Magic, Mariana, Asia, Frankizo, Rin Marie, Larah, Shine nand Payovella, Joel Lwaga, Benson, Chaz Baba, Bushoke, Ibranation, Nandy, Weusi, Whozu, Wannestar, Amosoul, Johnie, Msai one, Kinoge, Joel Lwaga, Ndela, Marisa, Golden and PW1. The song's video was recorded and uploaded on 28 August 2018 onto Clouds Media's YouTube page - EXP8 which is the You Tube page original screenshot and song of Nchi Yangu-Official Video -Tanzania Ail Stars available at CLOUDSMEDIA page known as Nchi Yangu Official, a video posted on August 28th 2018, and certificate of authenticity marked as EXPE2(a). PW1 further testified that he was the one who was involved in se­ lecting the singers who would sing and perform the song and directed the whole process and made various WhatsApp communication with regards to the matter. He also mentioned one Mr Emillian Mallya who also for­ warded an email that was sent by Ruge Mutahaba via his email ruge.mu- tahaba@gmaii.com to medias in Tanzania forwarding the final version of the song and confirming the name of the singers, the composer of the 16 song (me), coordinators of the song and music director (me and Ema the boy) EXP5(a) and (b) & (c). As for his original version of the song sang only by him. PW1 testified that the first version of the song was released to the public in 2019, a song which is still displayed on his YouTube chan­ nel from 10th January 2019. He also elaborated that the channel has es­ tablished views, like, detail of publication, the details of the writer and performer of the song (EXP2(b). On his part, it was PW2's evidence that they started producing the song from 2015 to 2017. He was however clear that when he pro­ duced the said original song of "NCHI YANGU" for Ditto and before it being released, Ditto informed him that the song should not be released and he adhered to his instructions. PW2 further testified that in the same year 2017, Ditto came to the studios at Epic Records with one Rugemalira Mu- tahaba ("Ruge Mutahaba") who is now deceased and he (Ditto) told me to play the song of NCHI YANGU to Ruge Mutahaba. That he played the song for him. Further that around August 2018, Ditto told PW2 that Ruge Mutahaba had informed him that he needed the song NCHI YANGU to be used at the Urithi Festival which was a national event, but the said song would be sang by different artists and Ditto would be included in the said song. PW2 also testified that he even asked Ditto if he had agreed with the said idea and he confirmed that he had consented that the song be 17 used at Urithi Festival and be sang by different artists and that the very same song would also be sung by other artists. PW3 also admitted during cross examination that the song as displayed on THT account it reads "Nchi yangu" Tanzania all starts audio. It says that the song is dedicated to our country Tanzania and will be lead song during Urithi Festival in Dodoma. She also testified that the song was published by Clouds Media and THT for the sake of Tanzania Nation and not for commercial purposes. She further testified that in order to be in your Youtube Channel, that song must be copyrighted and that the song Nchi Yangu Song All Stars version is available on Epic Records Chan­ nel and Clouds Media and that it is not on Dotto Bwakea's Channel. With the above evidence in mind, the catching point in this case is where Mr Ruge Mutahaba came in. It is undisputed by the plaintiff that at some point in time he transferred his right of his artistic work to Mr Ruge. This evidence was also supported by PW2 and PW3 along with PW4. That means, he gave Ruge his rights to his artistic work to make another ver­ sion of the song, an All-Star song - EXP8. PW3 also testified that in order for the song to be on your YouTube channel it needed to be copyrighted so by implication of her evidence Clouds Media had rights over the All- Star version and that is why it was on their channel. In their submissions, the Counsels for the defendant referred the 18 court to several email correspondences between the plaintiff and the late Ruge. The exhibit PE 5 (b) is the email correspondences between the late Ruge and the plaintiff. For ease of reference the emails read as follows: "Fwd: Urithi 5 messages Em ilian Mallya <emiiiian.maliya@ gmail.com> 7To Lameck Ditto fameckditto@gmaiLcom ------------ Forwarded message----------- From: Ruge Mutahaba ruge.mutahaba@gmaii.com Date: Mon, 27 Aug 2018 a t 05:33 Subject: Fwd: Urithi To: maicy@efrn. co. tz,io vce.mha ville(a)itv. co. t2, Regina Mengi regina.m engi.gmaii.cm ii, Im ani kajuia im anikaju- iatz@gmaii.com, Sandu George sandumpanda@gmaii.com, Dr. Ham isi A. Kigwangaiia hkigwangaiia@gmail.com, audax Mabulia aumabu@gmaii.com \ Cc: Sebastian maganga sebastianmaganga@gmail. com, saadat bifiai billal.saadat(5)amailcom, Em iiian Maiiya emillian.mallya@gmail.com, Mawazo Ramadhani mawazorfa@gmaii. com Dear AH, 19 T his is th e fin a l version o f the U rith i Song to be p re m ie re d in a ii m edia houses tom orrow 27th A u g u st 20 18 (A n y tim e a fte r 7am ). We are behind schedule but thank you very much Radio One, EFM, East Africa Radio and Ciouds we have a ii agreed to start playing the song tomorrow morning to build the mood for the event on Saturday. Since the U rithi Festivities are to last for one month kindly let's continue supporting this initiative and Understandably they m ight by comments and additions ideas; feel free to contribute but fo r now, we are out o f time. Let's communicate on them as we get closer to the launch date which w ill be on the 1st o f Sept 2018, NB: Kindly someone help in sending it to TBC FM (Prof. Mabulla) and other station as a m atter o f urgency so it feels like we are working in synergy and the country is singing one song. Tafadhali naomba sana m nisaidie kutuma kwa wakuu wenu wa vipindi kwa ajfflya kuanza promotion kubwa ya Wimbo huu wa U rithi kwani muda haupo upande wetu. Chini nimeambatanisha m ajin a ya w a sa n ii w a iio sh irik if w engi w akiw a n i w a sa n ii c h ip u k izi w a m ah adh i yo te 20 ku a n zia Bongo Flava, G ospel, M u zik i wa D ance, tra d itio n a l D ance N a k u n d i ia vija n a w an afu n zi wa Vyuo V ikuu UDSM, T um aini na IF M ." Reading from the above email, it shows that the song that was published first and used by the defendant was not owned by the plaintiff. From the email, it can be concluded that the rights to publish and use that song was transferred to the late Ruge Mutahaba and he was the one in control of its distribution and publication. Even in her closing submissions, Ms. Mlemeta referred to Screenshot of "Nchi Yangu" official video from Clouds Media YouTube page which was admitted as EXHIBIT PE8, an exhibit which she argued to prove that the song was utilized and used at the URITHI HERITAGE FESTIVAL upon being consented by the Plaintiff. She also referred to screenshot /of Urithi Heritage Festival Whatsapp communication between Dotto Bernad Bwakeya (Lameck Ditto) and Rugemarila Mutahaba and certificate of Authenticity, email from Emilian Mallya to Dotto Bernad Bwakeya (Lameck Ditto) dated 14 November 2019 and Certificate of Authenticity were /collectively admitted as EXHIBIT PE5(a) (b) and (c). She emphasized that these documentary evidences prove that the Plaintiff consented to the use of NCHI YANGU song during the Urithi Festival. It is also pertinent to note the alleged song by the plaintiff has two verses while the song sang by all starts under 21 EXP8 had three verses. Further to the above, in his own testimony, the plaintiff testified that he made his song in 2017 but it was never published. He also admits that in 2018 the All Star Version was created and the same was released to the public as exhibited by EXP5(b). He further admitted that hthe version of his song was published in the year 2019 which is way after the All-star version had already been aired by the media houses listed in EXP5(b) above. The crucial question here is on how the public would have known that there was his version of the song in store since 2017 while it was not until January 2019 that the song was released after the All-Star Version was in public? The answer to this question remains a conundrum. Now, having all the above facts in existence, particularly the fact that it was Ruge who was in control of the All-Star Version of the song that was released first, and since the terms of the agreement between the plaintiff and Mr. Ruge were concealed to the court as only oral evidence to prove the existence of the agreement was produced. It is unknown as to the extent upon which the right transferred to Mr Mutahaba where restricted for the use by other people. The late Ruge never complained of the defendant's use of his All-Star Version of the song. What is important to note at this point is that an innovation or 22 work of art on creativity which may form a copyright is a valuable asset that should not be given away without careful thoughts. This is because, once it is given away, all re-use of the expression in the article or any artistic work, regardless of version, is entirely governed by whatever rights, if any, that are licensed back to the author in the transfer agreement. Unfortunately, the extent of the agreement in this case is unknown. In his own evidence, the plaintiff testified that it was Mr Ruge who came up with the idea of an All-Star version. Again, there is evidence of emails dispatched by Mr Ruge Mutahaba to different media houses exhibit P5(b). With this exhibit P5(b), it means Mr Ruge diverted those rights to different media houses giving them permission to spread that song as wide as it could get. But there's no restriction, however, as to what extent was that to be spread, to be used to promote and advertise our country outside or to be used for other purposes. Most important thing to note is that at all these times, the alleged original version sang by Dotto Bwakea himself was yet to be prepared and released. To say the least, there are no evidenced restrictions as to the extent upon which Mr Ruge could allow other media houses to use that song. Although there's no direct evidence showing that Mr Ruge also allowed DS7V to use that song, but there is also no contradicting evidence to show any restrictions or limitations upon which the All-Star version of 23 the song Nchi Yangu could be used, especially considering the fact the same was to be used to promote the culture and heritage of the country (according to plaintiff's evidence). In that sense given the fact that the All-Star version song is not the one copyrighted registered at Cosota, via exhibit P3, and that by the time the All Star version came out there was no any other song in the same lyrics that was also released or known to public, then we cannot make a conclusive finding that what the defendant used in AfCON adverts is the same song that was copyrighted in exhibit P3 considering the crucial fact the EXP3 version of the song was published after the All-Star song was made public. Had the plaintiff wished to prove that he had any restrictions over what was conferred to Ruger for public use in the festival, then he would have either produced evidence to show the restriction, or any written contract to show that the extent upon which the rights to create another version of the song and write to use it widely was restricted. In the absence of that and given the overwhelming evidence that Mr Ruge had allowed other media houses to use that song and promote it, we cannot burden the defendant for claim for damages in adverse. In conclusion therefore, the issue as to whether the song used by the defendant is the same song owned by the plaintiff is answered in favour of the defendant because the song "Nchi Yangu" used by the 24 Defendant as alleged in (EXPE7b) is not the same song allegedly owned by the plaintiff and copyrighted via exhibit P3. This automatically answers the second issue as to whether the said song was used by the defendant during the AFCON. The answer to the issue is in the negative, the defendant did not use the plaintiff's song in EXP3 during AfCON campaigns. It was rather the All-Star Version that was used. Having so answered the second issue in favour of the defendant, the third issue will then be determined. The issue is whether usage of the plaintiff's "Nchi yangu" song by the defendant constituted or amounted to infringement of the plaintiffs copy righted work. The evidence in this issue included that of PW4 whom, when XXD by Mr. Thomas, he admitted that Youtube Channel for Epic Records- THT, says that the song was composed by Ditto and not owned by Ditto. It says "w im bo huu n i m aalum kw a a jU i ya ta ifa ie tu la Tanzania k u s is itiz a ju u ya u rith i w etu wa am ani na upendo". According to the advert, he added, the song was not released for commercial purposes. PW3 also admitted in cross examination when shown EXP5 that the song was used by Dstv in June 2019. In para 8 of the plaint, the plaintiff pleaded that: "That on diverse dates between June to Ju ly in the year 2019, the Defendant, without perm ission or authorization 25 whatsoever from the P lain tiff herein, made unauthorized use o f the P la in tiffs Song/Sound track titled NCHIYANGU in her AFCON 2019 DSTV TUPOGO campaign which was broadcasted in various social networks and media which includes Instagram, Facebook, twitter, YouTube and pay per view TV stations, thereby infringing m y rights over m y registered m usical work named above." Further on para 13 of his plaint, the plaintiff further pleaded: "That based on the promotion o f the AFCON 2019 DSTV TUPOGO campaign which started on A p ril 2019 to I9 h Ju ly 2019 when AFCON was finalized in Cairo-Egypt and days after, the defendant unjustly benefited/obtained p rofit as a result o f the unauthorized use o f the Plaintiff's N C H I YANGU song and the P la in tiff has suffered damaged a t the instance o f the Defendant in terms o f infringem ents o f his copyrighted work, profits and brand equity she enjoyed and attributed and loss o f licensing opportunities on the part o f the P lain tiff." However, as per the EXP3, the original version of the song itself was copyrighted in July 2019 and it was not the one used by the defendant. In his further evidence in cross examination, it was revealed by PW4 that (EXPE6) a Clouds Media Channel showed that the All Star Version of the song was uploaded in August 2018. He also didn't know when it was uploaded in Lameck Dittos Youtube page but he also admitted that according to EXPE6, it was published in January 2019. He further admitted that both versions were uploaded to Public Domain before June 2019. Responding to (EXPE5(b)) he agreed that the second version was aired by Radio One, EFM, EA Radio and TBC FM in August 2018. This was also admitted by PW2, who testified during cross examination that in the music industry you may be an author of the song but not the owner. You may sing a song which you did not write or you may have written a song but then it does not belong to you. That one may be a writer but not author of owner of the song or a composer not owner if you sold that right to someone else. When he was shown the All-Star Version playing in Clouds Youtube Account he admitted that in the media platforms you cannot publish a content if you don't have a copyright. And when shown the emails in EXP5(b), PW2 admitted that according to the email, the song was requested to be used for Urithi Festival and that the late Ruge was directing the heads of units to use the song in different radios and TV. From Ditto Ruge only asked the plaintiff to use the song in Urithi Festival only. However, as said earlier, the contents of the agreement between the late Ruge and the plaintiff remains unknown and PW2 admitted that 27 the plaintiff and the late Ruge had their own agreement and the plaintiff just came to him to the studios and asked him to let Ruge listen to the song. That previously, the plaintiff he had forbidden PW2 to make anyone hear that song but when he came with Ruge he told PW2 that they have reached an agreement. At this point, coming to test for the elements for infringement, undisputedly, there is the existence original content of an artistic work created by the plaintiff which is registered (EXP3). However, on the second element that the defendant must have improperly copied or created another work in deceit on a content created by the copyright owner and three is that the improper copying or creation of the subsequent work in a content created by the copyright owner must have been done without permission or authorisation of the copyright owner. This test is redundant because consent was given by the owner of the original artistic work to have the same created in another version to be performed by other artists including him. This is where the controversy of this whole matter lies because as the evidence entails, the defendant's defence is that the song that was used in their adverts is not the same as the original song copyrighted by the plaintiff. It was also DWl's evidence that there are two versions of this song, there is original version Nchi Yangu sang by Ditto which is 28 copyrighted and the there is a second version Nchi Yangu same name but sang by Tanzania All Stars, there are many stars and it is not copyrighted and there is no certificate here. That he knew both the songs and the displayed All Stars says composer is Ditto. He also admitted that as per (EXPE7b) the song playing on the background is Nchi Yangu All Stars and it was displayed on Dstv. The same was the evidence of DW2. Therefore since the evidence shows that the defendant used the All-Star version of the song published before what is alleged to the original version by plaintiff, the plaintiff would have no claim of a copyright which by an agreement, the right to make a new version and publish it was given to another person. It should also be emphasized that since the version of the song is different and was composed by a different person under concealed terms, therefore not only did the adverts by the defendant come before the EXP3 came into existence, but also the song copyrighted via EXP3 is not the same song played by the defendant in their advertisements during AfCON campaigns. In conclusion therefore, as the second issue is also answered in favour of the defendant, that the song used by the defendant during the AFCON campaigns was not the one copyrighted in July 2019, this automatically answers the 3rd issue in favour of the defendant, the usage of the plaintiff's "Nchi yangu" song by the defendant did not constitute to 29 I infringement of the plaintiffs copy righted work. The remaining issue is on the reliefs that the parties are entitled to. Much as I appreciate the fact that the plaintiff took his time to put his thoughts into motion and came up with some patriotic lyrics, what is to be determined by the court is based on what the law and precedents say in relation to the evidence adduced. In this case, since it was proved that the song in controversy is not the one owned by the plaintiff via EXP3, and since it was concluded that there is no infringement of the plaintiff's rights, then the plaintiff is not entitled to any reliefs sought. I have noted the evidence of both PW1, PW4 and PW5 quantifying the revenues anticipated to have been gained by the plaintiff quantifying damages that the plaintiff would have been entitled to. The evidence include EXP4, 9(a)&(b),10, 11,12,13 and 14. However, this evidence would have been useful if it was found that there was an infringement of the copyright of the plaintiff by the defendant. That evidence would have helped the court to assess the amount of damages in anticipated cost or award that the plaintiff would have gained by having contract with the PW3 put in motion. Since that never happened then the evidence cannot be said to be useful in this case. Therefore much as I appreciate the evidence, it is of no use having the first three issue answered in favour of the defendant. The matter therefore stands to be 30 dismissed. On their part, the defendant had asked for the dismissal of the suit with cost awarded with interest. Although the defendant is entitled to costs, I'm afraid in this case interest on the costs to be awarded cannot be awarded because one; it is not a normal practice of the courts to award interest on the cost incurred by the defendant to defend the suit. In civil cases, cost entails what the party had to spend in prosecuting or defending his suit including the day-to-day cost of attending court sessions, the instruction fee, the filing cost and other incidental expenses. This has no justification for any interest as they don't attract any. Two; is that it has been said in many cases that cost should not be awarded as a punishment to a legitimate plaintiff. Rather it is awarded to make good the loss of the cost that the other party has incurred in prosecuting the suit. So putting interest in the cost will do nothing but scare people to approach the courts fearing the consequences that will cause them a burden in the name of cost. As a matter of law and practise, interest is charged on decretal amount that is decreed by the court and claimed through execution. On the hand, costs are awarded with no interest and are claimed through a Taxation Cause. Having made the above analysis and findings, and having found the plaintiff failed to prove his claim on balance of probabilities, a yard 31 stick in proof of civil cases; and further having the 2nd and 3rd issues answered in favour of the defendant, I hereby proceed to dismiss the suit with costs awarded to the defendant. Dated at Dar-es-salaam this 23rd day of July, 2024 32