[2025] UGCommC 42

#### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL DIVISION)

#### CIVIL SUIT NO. 1025 OF 2022

# **KIGGUNDU BRUNO (A. K. A. BRUNO K) ::::::::::::::::::::::::::::::::::: VERSUS**

1. BLACK MARKET RECORDS ENTERTAINMENT -SMC LTD

- 2. SINGLETON CEDRIC LYCHERN - 3. KISAME SHADRACK SHAGAF

## 4. BLACK MARKET MEDIA LLC T/A BLACK MARKET RECORDS :::: DEFENDANTS

#### (Before: Hon. Lady Justice Patricia Mutesi)

#### **JUDGMENT**

### Introduction

1. The Plaintiff brought this suit against the Defendants jointly and severally for copyright infringement, unlawful and fraudulent commercial exploitation of his songs, an account, a permanent injunction, general damages, exemplary damages, interest and costs of the suit.

## **Brief facts**

The Plaintiff is a Ugandan musician, recording artist and composer of songs. $\overline{2}$ . The 4^th Defendant is an American record label which has been making inroads in Uganda since 2020. In early 2020, the Plaintiff was approached by the 2^nd and the 3^rd Defendants who were acting for the 4^th Defendant at the time. They wanted to sign him up as one of the 4^th Defendant's artists. The negotiations that followed culminated into the execution of a one-year Exclusive Recording Artist Agreement ("the Agreement") on 12^th May 2020 between Black Market Records LLC and the Plaintiff. Under the Agreement. the Defendants would finance all songs composed by the Plaintiff and share the royalties collected therefrom with him.

- The Plaintiff has asserted that soon after the execution of the Agreement, $3.$ the Defendants breached it and remained elusive. For the one-year duration of the Agreement, the Plaintiff produced only one song in collaboration with another artiste. At the expiration of the Agreement, he informed the 2^nd and 3^rd Defendants that he did not want to renew it. He then went on to produce several other songs thereafter and uploaded them onto his YouTube channel to market them. - 4. The Plaintiff has also asserted that, to his shock and surprise, the Defendants started infringing on his copyright claiming that they owned all his songs. They started to target his YouTube channels by making up fictitious copyright infringement claims to his songs. They would make false reports against his songs to YouTube and the songs would always take them down. His channels were eventually banned by YouTube for "continued copyright infringement" due to the Defendants' claims. - Finally, the Plaintiff said that he later discovered that "Black Market Records 5. LLC" with which he executed the Agreement did not exist as a legal entity at the time of that execution. He used this new information to get his YouTube channels reinstated, but he insists that the Defendants continue to distribute his other songs for financial gain without his consent and to cheat him of his share of royalties from the one song he produced under the Agreement. - On the other hand, the 1^st Defendant's case is that it was incorporated as a 6. single member company on 24^th July 2020 with the 2^nd Defendant as its single member. On 6^th September 2021, the 1^st Defendant was converted into a multi-member private limited liability company with the 3^rd Defendant and a one Kulaba Tony Ocean as its other shareholders. The 1^st Defendant asserts that it has never had any business dealings or transactions with the Plaintiff since its incorporation. - On his part, the 2^nd Defendant admits that on 12^th May 2020, while acting on 7. behalf of "Black Market Records", he executed the Agreement with the Plaintiff. He asserts that the Agreement is still valid to this day. He denies any

personal dealings with the Plaintiff and maintains that, at all material times, he was a representative of "Black Market Records LLC".

Finally, although the $3^{rd}$ Defendant admits becoming a shareholder in the $1^{st}$ 8. Defendant on 2^nd September 2021, he denies any dealing with the Plaintiff whether in his personal capacity or in any other capacity. The 4^th Defendant admitted the Agreement but denied any violation of the Plaintiff's copyright. It, instead, raised a counterclaim for the recovery of money it claims to have advanced to the Plaintiff to produce songs under the Agreement which the Plaintiff is said to have kept without producing the expected songs.

## **Representation and hearing**

- At the hearing of the suit, the Plaintiff was represented by Mr. Ferdinand 9. Tuhaise of M/S Kampala Associates Advocates, the 1^st, 2^nd and 4^th Defendants were represented by Mr. Rogers Musinguzi of M/S Lubega, Luzige, Kavuma & Co. Advocates while the 3^rd Defendant was represented by Mr. Geoffrey Mutayomba of M/S Agaba & Co. Advocates. - 10. The Plaintiff testified in support of his own case as PW1. He also adduced 44 documents which were admitted into evidence and exhibited consecutively as P. Ex.1 – P. Ex.44. The $2^nd$ Defendant testified in support of his case and the case of the $1^{st}$ and $4^{th}$ Defendants as DW1. The $1^{st}$ , $2^{nd}$ and $4^{th}$ Defendants adduced 5 documents which were admitted and exhibited consecutively as D. Ex.1 – D. Ex.5. The $3^{rd}$ Defendant testified as DW2 in support of his case. He also adduced 6 documents which were admitted into evidence and exhibited consecutively as $D. Ex.6 - D. Ex.11$ . - 11. In his testimony, the Plaintiff (PW1) said that that he is a musician, composer, song writer, artist and performer. He stated that, since 2015, after emerging as 1^st Runner-up in the Airtel Trace Music Challenge, he has been composing and recording songs which have been recognised both locally and internationally. He said that he enjoys good will out of his music which is now uploaded onto several digital platforms and which earns him good revenue. He also said that he has two YouTube channels, i.e, "Bruno K" and "The Real Dance Crew" both of which have a great number of subscriptions.

- The Plaintiff said that sometime in 2020, he was approached by the 2^nd and 12. 3^rd Defendants with a proposal that he signs for "Black Market Records LLC", then said to be a record company incorporated in California, USA which was making inroads into Uganda. According to the 2^nd Defendant, Black Market Records LLC had been incorporated in California with its address as 246616 Sacramento CA 95824. On 12^th May 2020, he entered into the Agreement with Black Market Records LLC in which the latter would finance all his songs composed during that period and then collect and share royalties with him. He insisted that, at the signing of the Agreement, Black Market Records LLC was represented by the 3^rd Defendant. - The Plaintiff said that, soon thereafter, Black Market Records LLC breached 13. the Agreement, remained elusive and failed to fulfil its obligations. During the one-year period, he produced only one song "Omuwala" which was a collaboration featuring another artiste commonly known as "Daddy Andre". The song was uploaded onto YouTube under *Daddy Andre's* account and on other music platforms and has to-date gained more than one million views. At the expiry of the Agreement, PW1 informed the $2^{nd}$ and $3^{rd}$ Defendants who were representing Black Market Records LLC that he was not interested in renewing the Agreement. Despite that clarity, the $2^nd$ and $3^rd$ Defendants attempted to unilaterally renew the Agreement, a move which he protested in writing through his lawyers at the time. - 14. Furthermore, the Plaintiff revealed that, after the expiry of the Agreement, he continued to produce his own songs singly and/or in collaboration with other artistes. These included "Aliwa", "Obeerawo Mukama", "Ayingidewo", "Magician", "Ebisaanyi" and "Nakulyako" among others. In a bid to continue commercially exploiting his economic rights his music, he uploaded the songs to YouTube and they gained a lot of views. In a rare twist of events, despite the expiry of the Agreement, the Defendants started claiming that they owned all his songs. Between 2021 and 2022, the Defendants, in collaboration with another entity called Black October Music, made several reports of copyright infringement against PW1's songs and YouTube struck them down before eventually banning his channels. To make matters worse,

the Defendants proceeded to distribute his music, including songs like "Ntaawa" which he produced in 2019 before meeting the Defendants, and to collect royalties for his music without remitting them to him.

- 15. Finally, the Plaintiff told the Court that he later discovered that Black Market Records LLC with which he had executed the Agreement was non-existent, having been struck off the register of companies in the State of California on 27^th March 2013. He also found out that the 2^nd Defendant is not an agent of the said Black Market Records LLC. He swore a Statutory Declaration and sent it to YouTube following these discoveries and his channels were reinstated. He also discovered later that, in making claims to his music, the Defendants had relied on forged documents purporting that the High Court of Kenya had decided that the Plaintiff's songs do not belong to him. Despite recovering his channels, the Defendants continue to make fictitious claims to his music and to strike it down making it impossible for him to monetize majority of his music videos. - The 2^nd Defendant (DW1) testified that he is a resident of California, USA, a 16. music executive by profession, a former director of the 1^st Defendant and an agent of the 4^th Defendant. He stated that he came to know the Plaintiff as a Ugandan recording and performing artist through his business associate, a one Mr. Ocean. He revealed that after Mr. Ocean introduced the Plaintiff to him, the Plaintiff requested him for assistance and partnership. He informed the Plaintiff that he had associates who could help him out and proceeded to introduce the Plaintiff to the 4^th Defendant. Both the Plaintiff and the 4^th Defendant then negotiated the terms of a possible partnership. - The 2^nd Defendant testified that on 22^nd May 2020, the Plaintiff and the 4^th 17. Defendant executed the Agreement which he signed on behalf of the 4^th Defendant. In the Agreement, the 4^th Defendant agreed to fund/finance the art of the Plaintiff for a period of one year and the two parties were to share royalties from that art. The 4^th Defendant then embarked on its obligations of financing the Plaintiff. The 2^nd Defendant used to personally send money to the Plaintiff, on behalf of the 4^th Defendant, in cash or through his mobile

phone number. He denied the allegation that the 4^th Defendant financed one song "Omuwala" only as claimed. He maintained that the Plaintiff became evasive and that he has never shared royalties with the 4^th Defendant as per the Agreement.

- Finally, the 2^nd Defendant revealed that, on 24^th July 2020, he incorporated 18. the 1st Defendant as a single member company. This was two months after the execution of the Agreement. The 1^st Defendant was later on transformed into a private limited liability company by adding new members, to wit, the 3^rd Defendant and Kaluuba Tonny. He affirmed that he has no personal nexus to the Agreement, that he has never applied to YouTube to strike down the Plaintiff's music videos and that the 1^st, 2^nd and 4^th Defendants are not liable for the alleged infringement. - On his part, the 3^rd Defendant (DW2) told the Court that sometime in 2020, 19. through a friend, he was introduced to the 2^nd Defendant who told him that he was invested in talent management in music and that he was sourcing for a person who could do digital marketing. The 2^nd Defendant introduced him to "Black Market Records Africa" as the entity which the 2^nd Defendant was working with. He was then employed to undertake digital marketing for the entity and was put in charge of its business development and strategy. On 5^th May 2020, the 2^nd Defendant gave him a proposed contract to send over to the Plaintiff. He sent the contract to the Plaintiff as instructed. - The 3^rd Defendant further testified that on 24^th July 2020, the 2^nd Defendant 20. registered the 1^st Defendant as a single member company. The 1^st Defendant then employed him. On 6^th September 2021, vide a special resolution, he got 20 shares and became a shareholder in the 1^st Defendant. On the same day, he also became a director in the 1^st Defendant. He concluded that, sometime in 2022, due to irreconcilable differences, he stopped associating with the 1^st Defendant. He has since moved on and written to the 1^st Defendant through his lawyers seeking for an amendment of the register to have him removed from membership. He denied any involvement with the Plaintiff or any of the alleged infringement.

After the trial, counsel filed written submissions to argue and sum up their $21.$ respective cases. I have carefully read and considered those submissions, the laws and authorities relied on therein and all the other materials on record in reaching this decision.

#### **Issues arising**

The Court has deemed it fit to recast the issues framed by the parties at the 22. scheduling conference for determination as follows:

1. Whether this Court has jurisdiction to determine the suit.

2. Whether the plaint discloses a cause of action against the 3^rd Defendant.

3. Whether the Exclusive Record Artist Agreement between the Plaintiff and Black Market Records LLC of 13^th May 2020 is legally valid.

4. Whether the Defendants unlawfully and fraudulently exploited the Plaintiff's works and infringed on his copyright.

5. Whether the Counter-claimant is entitled to the recovery of UGX

12,000,000 from the Counter-defendant.

6. What remedies are available to the parties.

#### Resolution of the issues

- $23.$ **Section 101(1)** of the Evidence Act Cap 8 states that whoever desires a court to give judgment as to any legal right or liability dependent on the existence of facts which he/she asserts must prove that those facts exist. Additionally, **Section 103** of the Evidence Act Cap 8 provides that the burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. - $24.$ It is trite law that, in civil cases of this nature, the burden lies on the plaintiff to prove the existence of his/her rights and the liability of the defendant for breach thereof on a balance of probabilities. That standard will, typically, be achieved if Court is convinced, on the basis of the evidence adduced before it, that it is more probable than not that the breaches occurred. (See Miller v Minister of Pensions [1947]2 All ER 372). I will be guided by these

principles on burden and standard of proof in evaluating the evidence adduced.

Issue 1: Whether this Court has jurisdiction to determine this suit.

25. **Clause 16(e)** of the Agreement (P. Ex.1) provided that:

> "This Agreement shall be deemed to be executed in the State of California in the United States of America and shall be construed in accordance with the laws of said State and country. In the event of any disputes related to or arising under this Agreement, the parties agree to submit such dispute to the jurisdiction of the state and federal courts located in Los Angeles County." Emphasis mine.

It is on the basis of that Clause that counsel for the $1^{st}$ , $2^{nd}$ and $4^{th}$ Defendants has contended that this Court lacks jurisdiction over this matter. In response, counsel for the Plaintiff insisted that this Court has jurisdiction over the suit.

- Jurisdiction is the power of court to entertain, hear and determine an action 26. or proceedings. Jurisdiction is a matter of law and not inference or attractive reasoning. The power of a court to entertain, hear and determine an action must be expressly prescribed by law before that court can proceed with that action. Proceedings of a court without jurisdiction are a nullity since lack of jurisdiction goes to the root of the legality of the court's decision. (See Desai v Warsama (1967) EA 351.) - 27. The jurisdiction of this Court is prescribed in Article 139(1) of the Constitution of the Republic of Uganda, 1995 (as amended) which provides that:

"The High Court shall, subject to the provisions of this Constitution, have unlimited original jurisdiction in all matters and such appellate and other jurisdiction as may be conferred on it by this Constitution or other law." Emphasis mine.

This provision accords this Court has unlimited original jurisdiction in all cases as may be conferred by the Constitution or any other law. This Court is now called upon to determine whether this Court lacks the original jurisdiction to

handle this dispute or not, following the exclusive choice of court agreement in Clause 16(e) of the Agreement, in light of its unlimited original jurisdiction.

- An exclusive choice of court agreement is an agreement between 2 or more 28. parties that designates, for the purpose of deciding disputes that have arisen or may arise in connection with the parties' legal relationship, the courts of a specified country or one or more specific courts of the specified country to the exclusion of the jurisdiction of any other courts. An exclusive choice of court agreement may be constituted in a clause within a broader contractual document prescribing the terms of the contract between the parties (i.e. an exclusive jurisdiction clause). Alternatively it may be in a separate contractual document prepared and executed by the parties for the sole purpose of prescribing how they will settle the disputes that have arisen or could arise from their legal relationship. (See Maersk Agency Uganda Ltd v Derrick Munywevu & Anor, HCMA No. 1177 of 2021.) - In Transtrac Ltd v Damco Logistics Uganda Ltd, HCMA No. 394 of 2010, this 29. Court likened exclusive choice of court agreements to arbitration clauses. It then cited Dicey and Morris on the Conflict of Laws 9^th Edition at page 223 and found that the High Court retains the discretion on whether to enforce the exclusive choice of court agreement or to exercise its original jurisdiction over the matter. The Court went on to hold that:

"... because the foundation of the court's decision is a contract between the parties, it can only be invoked by parties to the contract ... the rationale for this is very simple and clear. It is termed a fundamental principle of law that only parties to a contract or who are *privy to the contract may enforce its provisions ..."* Emphasis mine.

In this case, page 1 of the Agreement (P. Ex.1) shows that the Agreement was 30. between the Plaintiff on the one hand and Black Market Records LLC on the other hand. None of the four Defendants was a party to the Agreement. The $1^st$ , $2^nd$ and $4^th$ Defendants cannot benefit from the exclusive choice of court agreement in Clause 16(e) of the Agreement because they are not privy to the Agreement. - In other words, although the dispute in this suit touches upon matters agreed 31. to in the Agreement between the Plaintiff and Black Market Records LLC, the dispute, as pleaded in the amended plaint, has not per se arisen between the Plaintiff and Black Market Records LLC. Since it is only the Plaintiff and Black Market Records LLC who are privy to the agreement, it is safe to conclude that it is only disputes between the Plaintiff and Black Market Records LLC that would be subject to the exclusive choice of court agreement in Clause 16(e) of the Agreement. - In the end, I find that counsel for the $1^{st}$ , $2^{nd}$ and $4^{th}$ Defendants raised the 32. objection to this Court's jurisdiction in error because none of the Defendants in this case is privy to the exclusive choice of court agreement in Clause 16(e) of the Agreement yet that is the sole legal premise for the objection. I have also found that, by necessary implication, since the dispute in the instant suit is between the Plaintiff and persons who are not privy to the Agreement, the applicability of Clause 16(e) of the Agreement does not even arise presently. The objection to the Court's jurisdiction is, thus, overruled with the finding that this Court has jurisdiction to hear and determine this dispute.

## Issue 2: Whether the plaint discloses a cause of action against the 3^rd Defendant.

- 33. A cause of action refers to every fact which is material to be proved to enable a plaintiff succeed or every fact which if denied, the plaintiff must prove in order to obtain a judgment. A cause of action is disclosed when it is shown that the plaintiff had a right which was violated by the defendant. (See Tororo Cement Co. Ltd v Frokina International Ltd, SCCA No. 2 of 2001 and Garfield Spence a.k.a. Konshens v Airtel Uganda Ltd & 2 Ors, HCCS No. 545 of 2015.) Whether or not a plaint discloses a cause of action is to be determined upon the perusal of the plaint and its annexures. (See Tendolyamukama Jonathan v Mufuwa Stephen & Anor, HCCS No. 74 of $2021.)$ - 34. In para. 5 of the amended plaint, the Plaintiff averred that he is a renowned musician, recording artiste, author and composer of several songs. He stated

that the 2^nd and 3^rd Defendants approached him in 2020 with a proposal that he signs the Agreement with Black Market Records LLC. He said that on the expiry of the Agreement, he informed the 2^nd and 3^rd Defendants that he was not interested in renewing it. He also stated that thereafter, the Defendants started claiming that they owned his songs, applying to YouTube to strike his songs and his channels down and distributing his songs without his consent and without sharing the royalties. Finally, he said that these claims continued even after the filing of this suit and that this has caused him losses because he is unable to monetize all his music videos.

35. In the circumstances, my considered finding is that the amended plaint aptly disclosed that the Plaintiff had rights to distribute, and earn from, his songs, that those rights were violated when the Defendants made copyright strikes against his songs on YouTube, when they got his YouTube channel banned and when they distributed his songs on digital platforms without his consent and without remitting his share of royalties, and that the Plaintiff, thereby, suffered loss of those royalties and the royalties he would have earned if he had been able to fully monetize his music. In these averments, the amended plaint discloses a cause of action in copyright infringement against all the Defendants, including the 3^rd Defendant.

## Issue 3: Whether the Exclusive Record Artist Agreement between the Plaintiff and Black Market Records LLC of 13^th May 2020 is legally valid.

36. Although the parties' evidence pointed to differing dates of execution of the Agreement, P. Ex.1 (the Agreement) shows that the Agreement was actually executed on 12^th May 2020. At page 1 of the Agreement, it was stated that:

> "AGREEMENT 12^th May 2020 by and between **BLACK MARKET Records** LLC ("Company"), whose address is PO Box 246616, Sacramento CA 95824 Bruno Kiggundu P/K/A Bruno K whose address Makindye Kampala, Uganda"

From this excerpt, it is evident that the only parties to the Agreement were the Plaintiff on one hand and Black Market Records LLC on the other hand.

As I noted in Issue 1 above, none of the Defendants to this suit was a party to the Agreement.

- The Plaintiff asserts that at the time of execution of the Agreement, Black 37. Market Records LLC with which he was supposedly contracting, had been suspended and that it could not enter into any contracts/agreements as long as that suspension had not been lifted. In their submissions, counsel for the 1^st, 2^nd and 4^th Defendants argued that the Plaintiff failed to adduce evidence to prove the non-existence of Black Market Records LLC. This submission is evidently misconceived. The Plaintiff's contention is not that Black Market Records LLC did not exist at the time of the execution of the Agreement. The Plaintiff's contention is that at the time of the execution of the Agreement, Black Market Records LLC was under suspension and that that suspension barred it from executing any contracts. - Counsel for the $1^{st}$ , $2^{nd}$ and $4^{th}$ Defendants further criticised the strength of 38. the evidence adduced by the Plaintiff in proof of Black Market Records LLC's incapacity to contract. I will now analyse that evidence in detail. At para. 50 of his witness statement, the Plaintiff testified that Black Market Records LLC was suspended by the Franchise Tax Board on 6^th February 2014 and by the Secretary of the State of California on 27^th March 2013, and that it has not been reinstated to this day. This testimony is corroborated by P. Ex.36 (A search report confirming suspension of Black Market Records on 27^th March 2013). - 39. Counsel for the Defendants did not cross examine the Plaintiff specifically on his testimony regarding the suspension. The legal consequence of omission by a party to cross-examine another's evidence on a material/essential point is that that evidence is deemed to be admitted as inherently credible and probably true. (See Geoffrey Brown v Ojijo Pascal, HCCS No. 228 of 2017.) On his part, the 2^nd Defendant's testimony was full of contradictions, and, as will be expounded in Issue 4, I found it to be very unreliable and unhelpful. The 3^rd Defendant's testimony did not respond to the Plaintiff's evidence of

the suspension at all. Accordingly, I have no reason to disbelieve the Plaintiff's evidence on the suspension of Black Market Records LLC.

- The Plaintiff adduced evidence to prove the effects of the suspension of Black 40. Market Records LLC. P. Ex.38 is an extract from the website of the Franchise Tax Board explaining the effect of the suspension. Therein, it is stated that a company may be suspended by the Franchise Tax Board for not paying taxes or by the Secretary of State for California for not regularly filing statements of information as required. It is further stated that, if a suspended company enters into contract before the suspension is lifted, the contract is voidable at the option of the other party or parties to it. The effect of this evidence is that, in essence, a suspended company under California law is barred from conducting business activities, like the execution of contracts and the filing or defending of court action. - 41. The Plaintiff also adduced P. Ex.18 (a statutory declaration sworn by him and sent to YouTube supporting his case against the ban of his YouTube Channel) and P. Ex.19 (YouTube's response to that statutory declaration). It should be noted that one of the annexures to that statutory declaration (Annexure K thereto) is the search from the California State Department confirming the suspension of Black Market Records LLC in 2013 (P. Ex.36). P. Ex.19 confirms that YouTube considered the statutory declaration. The Plaintiff's testimony, which was not challenged in cross examination, was that YouTube thereafter reinstated his channel and his songs. The significance of P. Ex.18 and P. Ex.19 is that they lend credence to the reliability of P. Ex.36 and P. Ex.38 as YouTube has already considered the said search report and relied on it to reinstate the Plaintiff's channel and songs. - While the Plaintiff could also have adduced an expert opinion in evidence, or 42. a certificate of status for Black Market Records LLC from the California State Department, I am convinced these evidential gaps do not substantially dent his case. This is because the position that such additional evidence would have proved is already well established in case law and all questions as to the reliability of P. Ex.38 in determining the effect of suspension of a company in

California are settled by the wealth of persuasive case law from the superior courts in California relating to the legal effect of such suspension.

- A good example of such cases is Peacock Hill Association v Peacock Lagoon 43. Construction Company [1972]8 Cal.3d 369, a decision of the Supreme Court of California, U. S. A. This was a dispute between Peacock Hill Association, a nonprofit corporation managing the common areas and affairs of a condominium project, and Peacock Lagoon Construction Company, the developer of the project. During the litigation, Peacock Lagoon Construction Company was suspended for failure to pay taxes but it later paid the taxes and applied for reinstatement. In delineating the effect of the suspension on the litigation, the Court confirmed that a suspended company or corporation loses power to exercise its corporate rights (including the right to contract). The Court explained that this position is based on a legislative policy positing that a delinquent corporation should be barred from enjoying the ordinary privileges of a going concern so as to bring pressure to bear upon it and force it to pay the due taxes. - Another example is the landmark decision of the Court of Appeal of 44. California, U. S. A. in Timberline, Inc. v Jaisinghani (1997) 54 Cal.4d 1361. In that case the plaintiff corporation had obtained a judgment against the defendant. However, before the judgment debt was paid, the Secretary of State of California suspended the plaintiff corporation for failure to pay franchise taxes. The plaintiff successfully applied to the trial court for renewal of the judgment for recovery purposes. That decision was reversed by the Court of Appeal which affirmed that a suspended corporation, like the plaintiff corporation, which had not revived its powers by payment of taxes due from it could not take advantage of its corporate rights (in that case, the right to recover the judgment debt). - From these authorities, I am convinced that Black Market Records LLC could 45. never have lawfully executed the Agreement with the Plaintiff on 12th May 2020 before regularizing its affairs with the California State Department. The Defendants did not adduce any evidence to counter the Plaintiff's evidence

or to support the claim that Black Market Records LLC was lawfully operating at the time when the Agreement was executed.

- I find that the Plaintiff exercised his option to avoid the Agreement through 46. this suit and through P. Ex.4 which is email correspondence between "Black Market Media" and the Plaintiff. In its email of 4^th September 2021, "Black Market Media" told the Plaintiff that he had breached the Agreement when he failed to deliver the minimum of 10 songs during the contract period and that it had elected to exercise its options to renew the Agreement so that he could deliver the agreed songs. In their reply, the Plaintiff's lawyers said that the Plaintiff had elected not to continue with the Agreement. This proves that, undoubtedly, the Plaintiff has opted to discontinue the Agreement after learning of Black Market Record LLC's incapacity, which choice is also confirmed through his case in this suit. - Section 9(1) of the Contracts Act Cap 284 highlights capacity to contract as 47. one of the fundamental ingredients of a valid contract. Section 10(1)(c) of the Act further stipulates that a person has capacity to contract where that person is not disqualified from contracting by any law to which he or she is subject. The evidence adduced by the Plaintiff along with the authorities referred to earlier confirm that Black Market Records LLC has been disqualified, by laws to which it is subject, from contracting since 27^th March 2013 to this day. Black Market Records LLC, therefore, had no capacity to enter into the Agreement on 12^th May 2020. - The finding in the preceding paragraph inevitably nullifies the Agreement. 48. This Court, thus, finds that the Exclusive Record Artist Agreement of 12^th May 2020 between the Plaintiff and Black Market Records LLC is null and void in its entirety.

## Issue 4: Whether the Defendants unlawfully and fraudulently exploited the Plaintiff's works and infringed on his copyright.

"Copyright" refers to the exclusive right to do, and to authorise others to do, 49. certain acts in relation to an artistic work. Copyright protects the maker of an artistic work from unauthorised appropriation of that work by another

person. (See Knight Frank Uganda Ltd v Broll Uganda Ltd, HCCS No. 0206 of 2021.) Copyright law, therefore, protects such work from being distorted. It also protects the rights of the owner of the copyright and provides remedies for infringement of the copyright. (See Black's Law Dictionary, 8^th Edition at p. 361.)

- In para. 5 of the amended plaint, the Plaintiff averred that he owns copyright 50. in several musical works. He said that he has recorded and released several songs since 2015, including "Song is Polo", "Make Some Love", "Turning Me On", "Nkooye Kuloza", "Faridah", "Tonta", "Mbagga", "Omuwala", "One for the Road", "Ebisaangirwe remix", "Ntaawa", "Take my Love", "Aliwa" and "Niwe Love", among others. He said that some of these works were recorded and produced by him in collaboration with other artistes. His case is that the Defendants infringed on his copyright in those works by making false claims as to their ownership which prevented him from fully monetizing them and by distributing them on several digital platforms, earning revenue therefrom and failing to remit that revenue to him. - The Copyright and Neighbouring Rights Act Cap 222 ("the CNRA") 51. prescribes a statutory framework for the recognition and protection of copyright works in Uganda. Section 2 of the CNRA defines an "author" as the physical person who created or creates work protected under Section 4 and includes a person/authority commissioning work or employing a person making work in the course of employment. Section 3 of the CNRA provides that the author of any work specified in Section 4 shall have a right of protection of the work, if the work is original and is reduced to material form in whatever method irrespective of the quality of the work or the purpose for its creation. - Furthermore, Section 4(1)(b) of the CNRA classifies musical works as works 52. eligible for copyright. Unfortunately, the CNRA does not define the meaning of a "musical work". The Halsbury's Laws of England (Copyright, Volume 23 (2023)) define "musical work" to mean a work consisting of music, exclusive

of any words intended to be sung, spoken or performed with the music. On the protection of musical works, it has been authoritatively opined that:

"The protection accorded to musical works in Uganda extends to works intended to be sung or performed with music. What attracts independent protection is not mere works but the lyrics and the song itself. Song writing is also taken to be part of copyright ... For a work to qualify for protection as a musical work, it must be an independent musical composition."

(See Bakibinga, D., & Kakungulu, R. M. (2016). Intellectual Property Law in *East Africa*. LawAfrica Publishing (U) Ltd, p.10.)

- In the instant facts, I am satisfied that the suit songs constitute musical works 53. within the meaning of the CNRA and the authorities referred to in the above paragraph. By virtue of Section 4(1)(b) of the CNRA, the songs are eligible for copyright. Since they were created and/or co-created by the Plaintiff, he is the author/co-author thereof. Therefore, the Plaintiff owns the copyright in respect of the songs he authored singly and that he co-owns the copyright in the songs he co-authored with other artistes. - Two broad categories of rights flow from copyright ownership. The first of 54. these two categories is that of economic rights. Under Section 8 of the CNRA, economic rights to copyright in a work entitle the author to publish, produce or reproduce the work, to distribute/make the work available to the public, to perform the work, to broadcast the work, to communicate the work to the public, to make a derivative work from the work, to commercially rent or sell the original or copies of the work, to reproduce a braille transcription of the work and to do any act known or to be known or to be known in the future in relation to the work. The second of these categories is that of moral rights. According to Section 9 of the CNRA, moral rights entitle the author of a work protected by copyright to claim authorship of that work, have his name or pseudonym mentioned or acknowledged each time the work is used, object to, and seek relief in connection with any distortion, mutilation, alteration or

modification of the work and withdraw the work from circulation if it no longer reflects his or her convictions or intellectual concepts.

- In Issue 3, it has been determined that the Agreement between the Plaintiff 55. and Black Market Records LLC is null and void. That finding has extinguished the Defendants' only basis for laying claim to the Plaintiff's songs. As a result, the Defendants do not own the copyright in any of the Plaintiff's songs and they had no business distributing or enjoying royalties or other benefits from them. It also follows that the Plaintiff is entitled to enjoy the economic and moral rights to the copyright in his songs in accordance with the law. - 56. The Plaintiff testified that the Defendants continue to strike down his music on YouTube. He told Court that, while he had earned \$460 from his YouTube channel in 2020 and \$1,112.92 from the same channel in 2021, he did not earn anything from it in 2022 after it had been banned due to the strikes on his music on allegations of copyright infringement. When the channel was reinstated in 2023, he earned a paltry \$278 for the year. His Google AdSense revenue also plummeted following the strikes. The Plaintiff further testified that the Defendants' actions of laying claim to his music continued even after the filing of this suit and that the Defendants claimed to own songs he had made earlier in 2019 and those he made in 2021, 2022 and 2023. - 57. This testimony is corroborated by P. Ex.9 (YouTube's notification banning the Plaintiff's channel). In the notification, the Plaintiff was told that his channel had been taken down for having 3 or more copyright infringement strikes. P. Ex.7 and P. Ex.10 are some of the YouTube strike notifications. They show that the strikes were instituted by "Black Market Records". P. Ex.29, P. Ex.41 and P. Ex.42 contain other YouTube strikes on the Plaintiff's songs instituted by "Black Market Records" and others by "Black October Music". P. Ex.34 was email correspondence confirming that payment of royalties to the Plaintiff had been halted following the strikes. - Another shocking revelation which came to light at the trial of this suit is that 58. the Plaintiff's songs were struck down on YouTube on the basis of forged court documents purporting to have been issued by the High Court of Kenya. In para. 38 of his witness statement, the Plaintiff told the Court that he made inquiries to YouTube about the source of the strikes on his music. YouTube then sent him documents purporting to have been issued by the Commercial and Tax Division of the High Court of Kenya sitting at the Milimani Law Courts in Nairobi which had formed the basis for the strikes. The documents were a plaint, an affidavit verifying the plaint and a summons to file a defence issued under case number "HCCS/E093/2022" and they were exhibited as P. Ex.27.

- The Plaintiff made further inquiries on the authenticity of these documents. 59. His lawyers wrote to the Kenya Judiciary. In response, the Court Assistant at the Commercial and Tax Division of the of the High Court of Kenya sitting at the Milimani Law Courts in Nairobi, using that Court's email address, replied saying that the case number from which the impugned documents were said to have arisen did not exist in the Commercial and Tax Division. This led the Plaintiff and his counsel to conclude that those documents were forged. - The Plaintiff further adduced evidence to show that he suffered reputational 60. damage following the Defendants' conduct of striking down his music. This was through his oral testimony and through P. Ex.30 (a series of Whatsapp screenshots of conversations between the Plaintiff and some of his fans). In the conversations, some of the Plaintiff's fans expressed their sadness and disappointment over the banning of his YouTube channel which had made it impossible for them to access his songs. - Finally, the Plaintiff adduced evidence to show that the Defendants uploaded 61. his songs onto other digital platforms, like Spotify and Apple Music, and that they collected royalties from those songs without remitting them to him. This is corroborated by P. Ex.15 which shows that "Tonta", one of the Plaintiff's songs had been uploaded to Spotify "BMI – Broadcast Music Inc." on behalf of "Black Market Records". The Plaintiff additionally testified that the 2^nd Defendant only paid him UGX 20,000 in royalties in the past for "Omuwala". - 62. The Defendants denied all the Plaintiff's claims of copyright infringement in their pleadings. The 1^st Defendant pleaded that it was incorporated in July 2020 after the Agreement was executed and that it was not involved with

the Plaintiff or his works in any way. The 2^nd Defendant said that it was the 4^th Defendant on whose behalf he signed the Agreement and that he was not personally liable for any copyright infringement. The 3^rd Defendant said that, save for sending a copy of the Agreement to the Plaintiff for his consideration and signature, he was never involved with the Plaintiff or his songs. Finally, the 4^th Defendant insisted that it is the one that executed the Agreement with the Plaintiff and that, although it sent money to him to produce songs, the Plaintiff breached the Agreement when he failed to produce the agreed number of songs.

- In his testimony, the 2^nd Defendant told the Court that, on behalf of the 4^th 63. Defendant, he sent UGX 12,000,000 to the Plaintiff. The Plaintiff then started becoming evasive and refused to produce the agreed number of masters. He disputed the assertion that the Plaintiff only produced "Omuwala" during the contract period. - The 2^nd Defendant's cross-examination at the hearing was very revealing. His 64. examination-in-chief was heavily discredited and dented. In examination-inchief, the 2^nd Defendant had said that he is an agent of the 4^th Defendant and a former director of the $1^{st}$ Defendant. In cross-examination, he said was an agent of Black Market Records LLC and not the 4^th Defendant. - The 2^nd Defendant's accounts in the preceding paragraph are so inconsistent 65. with each other that they cannot be harmonized. The Agreement states that it was executed between the Plaintiff and Black Market Records LLC. In their pleadings, the $1^{st}$ , $2^{nd}$ and $4^{th}$ Defendants averred that the Agreement was executed between the Plaintiff and the 4^th Defendant (Black Market Media LLC). In his testimony, the 2^nd Defendant first stated the Plaintiff contracted with the 4^th Defendant and then later changed and said that the Plaintiff contracted with Black Market Records LLC. - When asked about the inconsistency, the $2^nd$ Defendant said that reference 66. to his agency for the $4^{th}$ Defendant in the pleadings of the $1^{st}$ , $2^{nd}$ and $4^{th}$ Defendants and in his witness statement was a typo and that the documents ought to have read that the Agreement was between the Plaintiff and Black

Market Records LLC. I find this explanation to be an implausible afterthought which the 2^nd Defendant only coined in the heat of cross examination. If it was indeed a typo for the $1^{st}$ , $2^{nd}$ and $4^{th}$ Defendants, they should have applied to amend their defences before the trial. They should also have excluded that detail from the 2^nd Defendant's witness statement in the first place. Having received no reasonable justification for these major inconsistencies in the $1^{st}$ , $2^{nd}$ and $4^{th}$ Defendants' evidence, the Court is inclined to disbelieve it. (See James Sawoabiri & Anor v Uganda, SC Criminal Appeal No. 5 of 1990) on the law regarding major inconsistencies in evidence pointing to deliberate untruthfulness which are not satisfactorily explained away.

- In the end, I am satisfied that the Plaintiff's copyright was infringed when his 67. songs were struck down from YouTube, when his YouTube channels were taken down, when false claims of copyright infringement were made against him and when his songs were distributed without his consent and benefit. All that remains to be determined is who is liable for this infringement. - The Defendants denied infringing on the Plaintiff's copyright. My observation 68. is that the Plaintiff's evidence did not prove that the $1^{st}$ , $2^{nd}$ or $3^{rd}$ Defendants were personally involved in the copyright infringement. The 4^th September 2021 email purporting to renew the Agreement (P. Ex.3) came from "Black Market Media". The reply thereto by the then Plaintiff's lawyers (P. Ex.4) was also addressed to legal@blackmarket.media. - Furthermore, most of the strikes on the Plaintiff's songs on YouTube are said 69. to have been instituted by "Black Market Records". A few others are said to have been instituted by "Black October Music". On Spotify, his songs appear to have been uploaded, and thereby distributed, by "BMI - Broadcast Music Inc." on behalf of "Black Market Records". The false court documents said to have been issued by the High Court of Kenya, which came to the Plaintiff's notice through an inquiry he made to YouTube about the basis of the strikes on his songs and channel, show that they were drawn or issued in the names of "Black Market Records".

- The 3^rd Defendant is the one who shared the draft of the Agreement with the 70. Plaintiff. This is corroborated by P. Ex.2 which is an email forwarding the draft to the Plaintiff on 5^th May 2020. It was signed off by the 3^rd Defendant for and on behalf of "Black Market Records Africa". Apart from the fact that "Black Market Records Africa" is not a party to this suit, it is unlikely that the 3^rd Defendant, in facilitating the execution of the Agreement, is by necessary implication liable for the infringement of the Plaintiff's copyright. - The evidence on record proved that the $2^{nd}$ and $3^{rd}$ Defendants were involved $71.$ in the performance of the Agreement. First, D. Ex.3 contains receipts showing that the 2^nd Defendant sent money to the Plaintiff to record songs pursuant to the Agreement. Apart from the fact that sending money for songs, in this context, does not render one liable if the copyright in the songs is eventually infringed on, the $2^nd$ Defendant explained that he was sending the money on behalf of the 4^th Defendant and not in his personal capacity. Second, P. Ex.16 contains screenshots of Whatsapp messages between the 3^rd Defendant and the Plaintiff's manager. It shows that the 2^nd and 3^rd Defendants were acting in concert to "block" the Plaintiff's songs on YouTube. - 72. Despite their involvement in the performance of the Agreement, I am unable to see how the $2^{nd}$ and $3^{rd}$ Defendants can be held accountable in their own personal capacities for the infringement of the Plaintiff's copyright. None of their names feature in the strike notifications for the Plaintiff's songs. The evidence is not very clear on whether they were acting within or outside their official or other duties, but their involvement appears to have been on behalf of Black Market Records LLC (which the Plaintiff had contracted with) or on behalf of "Black Market Records" which was named in the strike notifications by YouTube. If their names had featured on one of the strike notifications. they would have had a case to answer in respect of the infringement of the Plaintiff's copyright. The absence of any of their names in the notifications is confirmation that they were both not involved in the copyright infringement in their personal capacities.

- I am also disinclined to hold the 1^st Defendant liable for the infringement. It 73. was incorporated after the execution of the Agreement and is not named in any of the strike notifications as the complainant. It is also not named in any digital platform as the entity that uploaded and distributed the Plaintiff's songs and music. - All the evidence adduced by the Plaintiff points to the 4^th Defendant as the 74. entity behind the infringement of the Plaintiff's copyright. The 4^th Defendant was added to the suit following 2 injunction applications filed in this case by the Plaintiff. In his affidavits in reply to the applications (P. Ex.43 and P. Ex.44), the $2^nd$ Defendant had claimed that it was the 4^th Defendant who owned the copyright in the Plaintiff's songs. The Plaintiff sought and obtained leave to amend his plaint thereafter. He then introduced "Black Market Media LLC $T/A$ Black Market Records" as the 4^th Defendant in the suit. - The 4^th Defendant entered appearance on the Court record and owned the 75. the name "Black Market Media LLC T/A Black Market Records". It, firstly, filed an application for leave to file a defence and pre-trial documents. After that leave was granted, it filed a written statement of defence and counterclaim under the same name. At the trial, the 4^th Defendant was represented by counsel and elected to rely on the same evidence as that of the $1^{\text{st}}$ and $2^{\text{nd}}$ Defendants. In light of these events, Court finds that the "Black Market Records" referred to in the several strike notifications on the Plaintiff's music on YouTube is actually the 4^th Defendant. - 76. Above all, it is now apparent that the infringement of the Plaintiff's copyright was facilitated by YouTube, Inc. itself when it took down the Plaintiff's songs and channel on the basis of forged court documents purporting to have been issued by the High Court of Kenya and on the basis of claims made by persons not being parties to the Agreement between the Plaintiff and Black Market Records LLC. It is not clear how these entities, if they exist, were allowed to keep making the strikes on the basis of an Agreement and court documents which did not even mention them. I am convinced that, had the complaints

about the Plaintiff's songs been more diligently scrutinised by YouTube Inc. itself, this dispute may have been averted altogether.

- During his cross examination, the 2^nd Defendant admitted that "Yes we still 77. receive royalties from Omuwala song." No accountability was availed to Court for these royalties. My reconstruction of the 4^th Defendant's dishonest scheme is that, through its agents the 2^nd and 3^rd Defendants, the 4^th Defendant duped the Plaintiff into signing the Agreement with Black Market Records LLC which was, and continues to be, suspended by the State of California and, thereby, incapacitated from signing any contracts. The 4^th Defendant, through the said agents, sent the Plaintiff some funds and he released "Omuwala". The 4^th Defendant then laid claim to all the Plaintiff's songs, deceitfully hiding behind different entity names (which were mostly variants of the "Black Market Records" name) to hustle him and force him to his knees while exploiting his music without any trace. This conduct is unlawful and unacceptable. - In conclusion, it is my considered finding that the 4^th Defendant infringed on 78. the Plaintiff's copyright and unlawfully exploited the Plaintiff's songs. It did this by making false copyright infringement complaints against him and by distributing his songs to its profit without the Plaintiff's consent and without remitting royalties due to the Plaintiff to him.

## Issue 5: Whether the Counter-claimant is entitled to the recovery of UGX 12,000,000 from the Counter-defendant.

- In its counterclaim, the 4^th Defendant averred that since 2020, it advanced 79. money, in cash and through electronic means, to the Plaintiff in the total sum of UGX 12,000,000 pursuant to the Agreement. It further claimed that the Plaintiff has been evasive and has denied it the opportunity to benefit from the Agreement. - At the trial, the 4^th Defendant relied on D. Ex.3 to prove the sum sought to be 80. recovered. D. Ex.3 is a series of 9 receipts of money transfers to the Plaintiff. When the sums in the different receipts are tabulated, they show that **UGX 2.785,000** was transferred to the Plaintiff by the 4^th Defendant, through the

2^nd Defendant, between 29^th May 2020 and 3^rd August 2020. During his crossexamination, the Plaintiff admitted that D. Ex.3 contained a true and correct account of the monies he received from 2^nd Defendant. In cross-examination, the 2^nd Defendant confessed that he did not have any other evidence confirming any other transfer of money to the Plaintiff.

- Accordingly, even though the counterclaim was drawn for recovery of UGX 81. 12,000,000, the only evidence adduced in proof of the counterclaim shows that only **UGX 2,785,000** was sent to the Plaintiff. If any money is recoverable under the counterclaim, it is UGX 2,785,000 and not UGX 12,000,000. - 82. Turning to the legal premise on which the counterclaim is founded, the Court has already found in Issue 3 above that the Agreement is null and void. In law, no action can arise from an illegal act and no court will lend its aid to a man who founds his cause of action on an illegal act. This is reflected in the maxim "ex turpi causa non oritur actio". Thus if a person's cause of action appears to arise *ex turpi causa*, court will not assist him. (See **Candiru Asina** Binnia v Centenary Rural Development Bank, HCCS No. 22 of 2016.) - 83. Nonetheless, the Contracts Act Cap 284 has prescribed a more lenient and equitable approach to void contracts. Section 54(2) of the Contracts Act Cap 284 provides that:

"Where a party to a contract incurs expenses for the purposes of *performance of the contract, which becomes void after performance* under section 25(2), the court may if it considers it just to do so in all the circumstances –

- (a) allow the other party to retain the whole or any part of any advantage received by him or her; - (b) discharge the other party, wholly or in part, from making compensation for the expenses incurred; or - (c) make an order that the party recovers the whole or any part of any payments, discharge or other advantages not greater in value that the expense incurred."

In the present facts, it has been established that the 4^th Defendant, acting 84. through the 2^nd Defendant, sent UGX 2,785,000 to the Plaintiff. In his cross examination, the Plaintiff admitted receiving this money and said that the 2^nd Defendant "... was supposed to facilitate my music, some payments would be for fuel, clothes e.g. when attending interviews ..."

Therefore, the 4^th Defendant's monetary facilitation was supposed to aid the Plaintiff to record and produce songs in accordance with the Agreement. The Plaintiff testified that he released one song "Omuwala" during that contract period. Although this was contested by the Defendants who alleged that he had released more songs during the period, they did not specify which other songs were released during the period in their pleadings or evidence. As a result, the only evidence available on the Court record shows that it is only "Omuwala" that was released during the contract period in which the said facilitation had been extended. As already highlighted, the 2^nd Defendant did indeed admit in his cross-examination that he did not have any evidence of financing any other songs.

- Section 54(2) of the Contracts Act Cap 284 accords this court the discretion 85. to decide whether consideration that could have changed hands under a void contract is recoverable or not. In the absence of a valid Agreement between the Plaintiff and Black Market Records LLC or any of the Defendants, this Court can best exercise that discretion by considering which solution the common law and principles of equity would favour on a case by case basis. (Also see Section 14(2)(b)(i) of the Judicature Act Cap 16.) - The rights bestowed on the owner of a work protected by copyright work are 86. exclusive in nature. This means that they are only exercisable by the owner or a person authorised by the owner. (See Bakibinga, D., & Kakungulu, R. M. (2016). Intellectual Property Law in East Africa. LawAfrica Publishing (U) Ltd, p.27.) There is no general rule that the one who finances the recording or production of a song must share in the royalties or profits from that song. Without a contract for sharing of royalties or profits from a work protected by copyright in which the owner of the copyright voluntarily contracts away

some of his or her rights in the copyright, it is my considered opinion that the financier of the song must get back his or her investment or facilitation and nothing more.

In this case I am convinced that, in equity, the 4^th Defendant is entitled to a 87. refund of its facilitation to the Plaintiff for "Omuwala" and nothing more as there was no valid agreement between the parties for sharing of royalties or profits. In those circumstances, the equitable doctrine of restitution would require a refund of those monies but it cannot require more. For that reason, the 4^th Defendant is entitled to recover **UGX 2,785,000** from the Plaintiff.

## Issue 6: What remedies are available to the parties.

88. The Plaintiff prayed for the following reliefs in the amended plaint:

## *i. Declarations*

Following the above findings, Court will issue declarations to the effect that 89. the Exclusive Recording Artist Agreement executed between the Plaintiff and Black Market Records LLC on 12^th May 2020 is null and void and that the 4^th Defendant unlawfully exploited the Plaintiff's protected works and infringed on his copyright.

## *ii. Permanent injunction*

In light of the findings in Issue 4 above, a permanent injunction shall issue 90. restraining the 4^th Defendant, its agents and/or anyone deriving authority from/under it from directly or indirectly infringing the Plaintiff's copyright and passing off as the owner and / or licensee of the Plaintiff's songs.

*iii.* Order of account and remittance of profits

Following the finding in Issue 4 above that the 4^th Defendant infringed on the 91. Plaintiff's copyright, the Court shall compel the 4^th Defendant to account the proceeds of its exploitation of the Plaintiff's works and to remit to him any and all such monies that are rateably due to him.

iv. An order directing YouTube to restore the Plaintiff's songs This relief cannot be granted because YouTube, Inc. was not a party to this 92. suit and never got an opportunity to be heard on the Plaintiff's case. Besides, although the Court noted that YouTube, Inc. was potentially responsible in part for the infringement of the Plaintiff's copyright, no specific findings were made in this regard by the Court. In my considered view, with the certainty of this decision that has fully considered the legality and enforceability of the Agreement, the Plaintiff can ably make a case for the copyright in his songs to any person or authority hereafter.

## v. General damages

- 93. General damages refer to the losses which flow naturally from a defendant's breach. They are what the law presumes to be the direct, natural or probable result of a defendant's breach (See Opia Moses v Chukia Lumago Roselyn & **5 Ors, HCCS No. 0022 of 2013**). They are also said to be the immediate, direct and proximate result, or the necessary result, of the wrong complained of. - 94. The evidence adduced at the trial proved that the Plaintiff's YouTube channel was banned following several strikes on his songs at the instance of the 4^th Defendant and its agents. The Plaintiff testified that he lost revenue from the channel and from Google AdSense. The Plaintiff further adduced evidence to prove that his fans were disappointed in him after failing to access his songs on YouTube. The natural and most probable result of these events is that the Plaintiff suffered financial loss, emotional distress and psychological torment as a result of receiving numerous strikes on his own music, inability to fully monetise his works and helplessness in the face of his fans' plight. - 95. Furthermore, in Stella Atal v Ann Abels Kiruta t/a '97 Africa Arts & Crafts, **HCCS No. 0967 of 2004**, this Court cited with approval the case of **Claydon** Architectural Metalwork Limited v DJ Higgins and Sons [1997] FSR 475 for the position that the normal measure of damages for copyright infringement is the amount by which the value of copyright as a chose in action has been depreciated. This was reiterated in Obsessions Co. Ltd v Warid Telecom (U) Ltd, HCCS No. 373 of 2010 and in Garfield Spence a.k.a. Konshens v Airtel **Uganda Ltd, (supra)** in which this Court maintained that the true measure of

damages due for copyright infringement in relation to musical works is the level of depreciation suffered due to the infringement or the effect that the infringement had on the marketability of the works.

- In para. 43 of his witness statement, the Plaintiff said that he earned around 96. \$460 in advertisement revenue from YouTube in 2020. He further stated that he earned \$1,112.92 from YouTube in 2021 but that he did not earn anything in 2022 after his channels were banned. When they were reinstated in 2023, he earned a paltry \$278 for the year. In para. 44 of his witness statement, the Plaintiff added that he got \$537 in 2020 and \$568 in 2021 from Google in Google AdSense revenue. However, the payments stopped in September 2021 as a result of the strikes. - As counsel for the Plaintiff submitted, the Plaintiff also testified unchallenged 97. in paras. 26 and 27 of his witness statement, that "Omuwala" has more than one million views on YouTube, over 1.53 million views on Spotify and more than 1.52 million views on Apple music. He stated that this implies that the Defendants have earned over \$4,000 from YouTube, \$6,100 from Spotify and \$7,600 from Apple Music. Accordingly, it is evident that the 4^th Defendant has earned at least \$17,700 from "Omuwala" alone so far, albeit unlawfully, while remitting to the Plaintiff only UGX 20,000. The Court also recalls that the 4^th Defendant hijacked the Plaintiff's royalties and/or profits for all his other songs on the said digital platforms and even got his YouTube channels taken down. - In view of all these factors and evidence, the Court awards UGX 100,000,000 98. to the Plaintiff in general damages which sum is considered to be a fair, just, reasonable and adequate compensation for the Plaintiff's non-quantifiable loss and injury.

## vi. Aggravated and/or punitive damages

Aggravated damages are awarded to compensate a plaintiff when the harm 99. done to him by a wrongful act was aggravated by the manner in which it was done. Accordingly, while they are also compensatory like special or general damages, aggravated damages are awarded for the defendant's bad motive or his or her exceptional conduct. (See DFCU Bank Ltd v Donna Kamuli, CACA No. 121 of 2016.)

- 100. On the other hand, punitive damages are awarded not only to compensate a plaintiff for his loss or injury but also to punish the defendant and mark the court's displeasure at his outrageous conduct. (See Daniel Oboth v The New Vision Printing and Publishing Corporation, SCCA No. 12 of 1990.) Punitive damages are awarded where the Court finds that a defendant's conduct was egregious, highhanded, vindictive and, or, malicious in nature. The intention behind the award of punitive damages is to warn society that similar conduct will always be an affront to society's and to the court's sense of diligence and decency. (Also see Ahmed El Termewy v Hassan Awdi & 3 Ors, HCCS No. 95 of 2012.) - The evidence adduced by the Plaintiff at trial showed that the 4^th Defendant 101. and its agents induced the Plaintiff into signing the Agreement well-knowing that Black Market Records LLC was suspended and could not enter into any new contracts at the time. They sent the Plaintiff some money and started laying claim to all his songs. While the Plaintiff had signed with Black Market Records LLC, the 2^nd and 3^rd Defendants started communicating with him and claiming ownership of his musical works under different entity names. When the Plaintiff asked about his royalties, they gave him a measly UGX 20,000. - 102. P. Ex.16 (copies of Whatsapp screenshots showing the correspondence from the Plaintiff's manager and the 3^rd Defendant) reveals that the Plaintiff, being frustrated with the Defendants' conduct, spoke about his plight in the media. Instead of addressing the Plaintiff's concerns, the $2^{nd}$ and $3^{rd}$ Defendants reacted by "blocking" one of his songs on YouTube and by arm-twisting him for a public apology before the song could be reinstated. From DW1's crossexamination, it became obvious that although the 4^th Defendant continues to receive loyalties for "Omuwala", it has not accounted to the Plaintiff for those royalties or remitted them to him, save for giving him a measly UGX 20,000.

- In my considered view, the conduct of the 4^th Defendant and its said agents 103. was disingenuous, callous and uncivil. Not only did the 4^th Defendant infringe on the Plaintiff's copyright, but I now find that it did so in a callous and devious manner. As noted earlier, what is truly shocking is that the court documents relied on by the 4^th Defendant and its agents to lay claim to the Plaintiff's music were disowned by the Court which is alleged to have issued them. For argument's sake, Even if those documents were true and correct. I cannot see any good faith basis for "Black Market Records" suing the Plaintiff in Kenya, yet they knew he is based in Uganda, and then not serving him with the relevant court process so that he can appear and defend himself. - 104. In the premises, although the Plaintiff prayed for awards of both aggravated and punitive damages, I find that this case merits an award of aggravated damages only. Accordingly, the Court awards UGX 30,000,000 to the Plaintiff in aggravated damages.

vii. Interest of 25% p.a. from the date of default until full payment

- 105. Section 26(2) of the Civil Procedure Act Cap 71 gives the Court the power to award interest on damages awarded in a suit. Ordinarily, a successful plaintiff is entitled to interest at a rate which would not neglect the prevailing economic value of money but which would also insulate him or her against further economic vagaries, like inflation and depreciation of the currency, in the event that the money ordered to be recovered is not paid promptly when it falls due. (See Mohanlal Kakubhai Radia v Warid Telecom Uganda Ltd. HCCS No. 0224 of 2011.) - 106. In view of these principles, the Court shall award interest to the Plaintiff on his due share of the proceeds of his music which the 4^th Defendant has ever received at the rate of 18% p.a. Since this sum of money is to be ascertained from the account that is to be ordered by the Court in this case, the interest shall begin to accrue from the date of judgment, and not from any earlier date, until full payment. Additionally, the Court shall award interest on the general damages at the rate of 16% p.a. from the date of the judgment until

full payment and on the aggravated damages at the rate of 14% p.a. from the date of the judgment until full payment.

viii. Refund of monies advanced by the 4^th Defendant to the Plaintiff

In light of the findings in Issue 5, the 4^th Defendant is entitled to recover the 107. sum of UGX 2.785,000 from the Plaintiff. However, there is no account for the royalties collected from the Plaintiff's songs on the Court record yet the Plaintiff's evidence has revealed that the 4^th Defendants has collected at least USD 17,700 from one of the Plaintiff's songs unlawfully. In the premises, the Court deems it fair and just for the 4^th Defendant to simply deduct and retain the UGX 2,785,000 from sum due to the Plaintiff in respect of those royalties, instead of ordering the Plaintiff to pay it upfront. No interest is recoverable on this sum as it was not prayed for in the counterclaim. Since the Court has found that it is the 4^th Defendant who duped the Agreement and proceeded to callously infringe on his copyright, the Court is disinclined to award general damages for the Plaintiff's alleged breach of the Agreement.

ix. Costs

- 108. Section 27(1) of the Civil Procedure Act accords this Court the discretion to award the costs in a suit before it. Nonetheless, the general rule is that costs follow the event. This means that an award of costs will generally flow with the result of litigation and that a successful party is entitled to costs, unless the Court, for good reason, orders otherwise (See Kwizera Eddie v Attorney General, SC Const. Appeal No. 01 of 2008). - 109. In the premises, the Court has not found any justification not to award costs of the suit to the Plaintiff. The costs of the suit are, therefore, awarded to the Plaintiff who is the successful party in the suit. Since only about $\frac{1}{4}$ of the claim in the counterclaim has succeeded, the Plaintiff shall pay $\frac{1}{4}$ of the 4^th Defendant's costs of the counterclaim.

## **Reliefs**

110. Consequently, the suit wholly succeeds while the counterclaim only succeeds in part. Judgment is hereby entered in favour of the Plaintiff against the 4^th

Defendant in the suit, and in favour of the 4^th Defendant against the Plaintiff in the counterclaim, in the following terms:

- Í. A declaration is hereby issued that the Exclusive Recording Artist Agreement of 12^th May 2020 executed between the Plaintiff and Black Market Records LLC is null and void in its entirety. - A declaration is hereby issued that the 4^th Defendant infringed on the ii. Plaintiff's copyright in his musical works. - A permanent injunction is hereby issued restraining the 4^th Defendant and iii. its agents, employees and / or anyone deriving his or her authority from the 4^th Defendant from directly or indirectly interfering with, or infringing on, the Plaintiff's copyright in his musical works and from passing off as the owner and / or licensee, of the Plaintiff's musical works. - Within 30 (thirty) days from the date of this judgment, the 4^th Defendant iv. shall deliver to the Plaintiff a true and formal account of its involvement in the exploitation of his musical works and of the monetary value of the royalties and other monies it has ever received in respect of those works. - The 4^th Defendant shall remit to the Plaintiff all the money rateably due V. to him following the account in (iv) above, less UGX 2,785,000 that is due from him pursuant to the counterclaim. - The $4^{th}$ Defendant shall pay interest on the sum in (v) above at the rate of vi. **18% p.a.** from the date of this judgment until full payment. - The 4^th Defendant shall pay the sum of **UGX 100,000,000** to the Plaintiff vii. in general damages.

- The 4^th Defendant shall pay interest to the Plaintiff on the sum awarded viii. in (vii) above at the rate of 16% p.a. from the date of this judgment until full payment. - The 4^th Defendant shall pay the sum of **UGX 30,000,000** to the Plaintiff in ix. aggravated damages. - The 4^th Defendant shall pay interest to the Plaintiff on the sum awarded $X$ . in (ix) above at the rate of 14% p.a. from the date of this judgment until full payment. - Costs of the suit are awarded to the Plaintiff. xi. - $\frac{1}{4}$ of the costs of the counterclaim are awarded to the 4^th Defendant. xii.

**Patricia Mutesi JUDGE** $(01/04/2025)$