THE REPUBLIC OF UGANDA,

IN THE HIGH COURT OF UGANDA AT KAMPALA

(COMMERCIAL DIVISION)

MISCELLANEOUS APPLICATION NO 161 OF 2014

(ARISING FROM CIVIL SUIT NO 283 OF 2012)

ALL HAJJI NASSER NTEGE SEBAGGALA}...............................................APPLICANT

VERSUS

MTN UGANDA LIMITED}.................................................................RESPONDENT

SMS MEDIA LIMITED}......................................................................THIRD PARTY

BEFORE HON. MR. JUSTICE CHRISTOPHER MADRAMA IZAMA

RULING

The Applicant filed this application under the provisions of Order 6 rule 19 of the Civil Procedure Rules for amendment of the plaint to include a prayer for a declaration that the Plaintiff’s neighbouring rights were infringed by the Respondents/Defendants and for costs of the application to be provided for.

The grounds of the application are that the amendment prayed for is necessary to indicate the Plaintiff’s claim with sufficient clarity. Secondly the Defendant and third party replied to the facts alleging infringement of the Plaintiffs neighbouring rights in their defences. Thirdly the scheduling in the instant suit “espoused” court pronouncing itself on the infringement of the Plaintiff’s neighbouring rights. Lastly it is in the interest of the future that the application is allowed. The application is supported by the affidavit of the Applicant who affirms on oath on the advice of his Counsel that a party may be allowed at any stage to amend his or her pleadings if it will serve the ends of justice. In order to expeditiously, effectively and effectually dispose of the suit it was necessary to amend the plaint to include a prayer for a declaration that his neighbouring rights are under infringement. Thirdly the application would not prejudice the Respondents in any way. Furthermore the Applicant claims that the scheduling conference took into consideration the prospects of the court pronouncing itself on the alleged infringement of the Plaintiff's neighbouring rights. The facts disclosing infringement of neighbouring rights are pleaded in the plaint. The Defendant and the third party replied specifically to those facts alluding to infringement of neighbouring rights.

The application was strongly opposed by the Respondent and the third party. The affidavit in opposition on behalf of the Respondent is that of the Senior Manager Legal and Regulatory Affairs of the Respondent Mr Rowland Zakumumpa. He deposes that the Applicant's suit seeks various remedies for alleged infringement of an alleged copyright. Upon perusal of the amended plaint of the court record he came to the conclusion that the issue of infringement of neighbouring rights in the suit caller tunes is not part of the Applicant's claim in the suit. The intended amendment would introduce a new cause of action and would accordingly change the nature and character of the suit greatly prejudicial to the Respondent. Pleadings were closed and the pre-trial conference was conducted and completed and the parties have already adduced evidence in chief by way of written witness statements filed on court record. The intended amendment which introduces a new cause of action belatedly will accordingly prejudice the Respondent and cause injustice to it. Furthermore on the advice of his Counsel he deposes that the Applicant has no right to seek leave to amend an amended plaint and the application was therefore an abuse of court process.

The further affidavit in reply on behalf of the third-party is sworn by Simon Kaheru, a director of the third party who deposes that the amendment is sought in bad faith and seeks to introduce a cause of action in neighbouring rights which was not previously pleaded in the plaint. To allow the proposed amendment would prejudice the Third-Party Respondent. Thirdly the court never pronounced itself on the issue of neighbouring rights since it has never been pleaded. Neighbouring rights were not pleaded in the plaint. The Applicant seeks to introduce a cause of action which is substantially of a different character from that which was originally pleaded in law and was therefore bad in law. Lastly he deposes that the application was brought in bad faith and is an abuse of the process of court and as such ought to be dismissed with costs.

At the hearing of the application Counsel Thomas Ochaya represented the 3^rd Party while Counsel Paul Kuteesa assisted by Jet Tumwebaze, represented the Respondent. Counsel Walusimbi Nelson represented the Applicant when the court was addressed orally.

The Applicant’s Counsel Nelson Walusimbi submitted that Order 6 rule 19 of the Civil Procedure Rules allows a party to amend his or her pleadings at any time of the proceedings. The amendment sought is to introduce a prayer for declaration that the Plaintiff’s neighbouring rights were infringed. The application is supported by affidavit of the Applicant. When the matter came for a scheduling conference the issue of neighbouring rights was raised. The court has power to allow an amendment and the amendment would not prejudice the Respondents in any way. The facts disclosing infringement of neighbouring rights were pleaded and the Respondents had prior notice of this application.

In reply Counsel Paul Kuteesa Counsel for the Respondent raised three points in opposition. Firstly he submitted that the application was filed out of time and is incompetent. It ought to have been filed within 15 days after completing the scheduling conference under Order 12 rule 3 (1) CPR. The scheduling conference was completed on the 13^th of Feb 2014 and the application ought to have been brought before 28^th of Feb 2014. The Applicant was directed to bring the application before that day. This application was filed on the 12^th of March 2014 out of time and the Applicant has not sought indulgence of court to extend time. This court has considered the timelines of Order 12 rule 3 of the CPR in several decisions. In any case the Applicant ought to have complied with the directive of court. On the first ground Counsel prayed that the application is dismissed.

Alternatively on the merits the amendment sought by the Applicant will prejudice the Respondent because it was brought at a later stage after a scheduling conference was conducted and closed. The parties have adduced their evidence by way of witness statements. The effect of the amendment would reopen the matter and a hearing date moreover had been fixed. He relied on the case of Eastern Bakery vs. Cantelino [1958] EA 461 for the proposition that amendments should be made before the hearing. Secondly the amendment seeks to introduce a new cause of action which is a claim in neighbouring rights. The initial cause of action is for infringement of copyright. The introduction of neighbouring rights introduces a new cause of action and introduces a new character to the suit which is prejudicial at this stage.

Counsel further submitted that leave to amend is an exercise of discretion and for the Applicant to be entitled he ought to justify why that discretion should be exercised in his favour. The Applicant in his opinion has not indicated why the amendment should be allowed. He prayed that the application is dismissed with costs.

Counsel Thomas Ocaya for the 3^rd party also opposed the application and relied on the affidavit of Simon Kaheru.  He associated himself with the submissions of the Respondent’s Counsel and added that Order 12 rules 3 (1) CPR has brought into play an element of time which court should consider in an application of this nature and prayed that the application is disallowed with costs.

In rejoinder the Applicant’s Counsel Nelson Walusimbi on the question of the application being filed out of time under Order 12 rule 3 (1) CPR, reiterated submissions that an application for amendment under Order 6 rule 19 of the Civil Procedure Rules can be brought at any stage of the proceedings. Order 6 rule 19 was not done away with by enactment of Order 12 rule 3 (1) of the CPR. He relied on the case of Eastern Bakery vs. Castelino (supra). He reiterated submissions that there is no new issue being introduced and the amendment ought to be allowed where there is no prejudice. Counsel further submitted that the suit raises novel points and seeks to interpret a new Act for the first time. The purpose of the amendment is to make the issues very clear. Counsel relied on Okidi and 2 other vs. Fina Bank Ltd MA 90 of 2013 arising from HCCS 219 of 2012 where Hon Lady Justice Helen Obura held the that affidavit considered in that application had not elaborated on the prejudice to be occasioned. In this case the witness statements were filed when the Respondents had notice of this application.

Finally on the question of new cause of action, the Applicant disagrees. He relied on Olal Bosco vs. Nsereko Lucky HCCS 113 of 2011, where court describes the premises upon which a cause of action is discerned by court. The pleadings addressed the issue of neighbouring rights and the 3^rd party replied thereto. What is sought is a clarification of the prayer. At the scheduling the issue of amendment was raised and it was to makes it clear for the benefit of both parties.

Ruling

I have duly considered the question of the timeliness for an interlocutory application under the provisions of Order 12 rule 3 (1) of the Civil Procedure Rules. It is not in dispute that the scheduling conference was completed and the suit was fixed for hearing when the matter came up on the 3 February 2014. On 3 February 2014 the parties included the question of whether the Plaintiff's speeches are protected works under the Copyright and Neighbouring Rights Act as one of the issues. The Court directed that witness statements shall be filed by 26 March 2014 and served on the opposite side and cross examination and examination would be on 28 April 2014 at 9:30 AM. Furthermore the court directed that the proposed application for amendment would be heard on 19 March 2014 at 9:30 AM. On the date fixed for hearing the application there was no application for amendment and time given was to enable the Applicant file the application and serve the Respondents who would then have an opportunity to file affidavits in reply if needed before the hearing date scheduled for 19 March 2014. The hearing date given was more than one month after 2 February 2014.

Subsequently the Applicant filed the current application on 12 March 2014 and it was fixed for 19 March 2014. However it is apparent that the Registrar of the court issued the application for service on 18 March 2014 one day before the hearing date. The application had however been filed more than one month after the court had indicated that the Applicant would file the application for amendment in time for the hearing on 19 March 2014 after pleadings in the application had been completed.

Obviously the application could not be heard within such a short time after it was issued on 18 March 2014. The record of the court shows that on 19 March 2014 Counsel has appeared in court as scheduled and the Applicant’s Counsel informed the court that an application was filed over a week ago and the Registrar issued it the previous day (18th of March 2014). Counsel for the Respondent protested that the court had fixed the date way back on 3 February 2014 and the application was filed more than a month after the date had been fixed. He observed that his colleague was guilty of dilatory conduct. Counsels prayed for costs. The ruling of the court thereon is as follows:

"I have duly considered the submissions of both parties on record.  It is a fact that on the 3^rd of February 2014 when this matter came for scheduling conference the court directed that the application for amendment will be heard on the 19^th of March 2014. However the application was filed on the 12^th of March 2014 more than a month later. Order 12 rule 3 (2) prescribes a period of about 15 days for service of interlocutory applications and a period of 15 days for reply. It was impossible for the application to proceed as directed by the court and the Applicant is guilty of dilatory conduct. In the circumstances the costs of today shall be paid by the Applicant in any event under rule 7 of the Constitution (Commercial Court) (Practice) Directions which gives a commercial court powers to award costs for non compliance with directions.  Costs shall be paid before the next hearing. Because of the prescribed time lines, the 28^th of April which had been reserved for hearing of the suit shall be the date for hearing the application. However the scheduled dates for filing witness statements shall be maintained. Another date for hearing shall be fixed.”

19 March 2014 was the opportune time for the Respondents Counsel's to raise the question of time bar under Order 12 rule 3 (1) of the Civil Procedure Rules. The court determined that the Applicant was guilty of dilatory conduct and awarded costs in any event for that conduct under rule 7 of the Constitution (Commercial Court) (Practice) Directions. Raising the time bar at this time was not proper since the matter had been mentioned for hearing on 19 March 2014 and ought to have been dismissed then. The Applicant by praying for costs only and not dismissal acquiesced to the late application to which they sought time to reply. The application for dismissal on the ground of not having been filed in time could be made without any affidavit in reply. In fact the Respondent’s Counsel submitted that the Applicant was guilty of dilatory conduct. Notwithstanding, an application for amendment of pleadings is governed by a separate rule which clearly stipulates under Order 6 rule 19 thereof that the court may at any stage of the proceedings allow either party to alter or amend his or her pleadings in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties. Furthermore rule 6 of the Constitution (Commercial Court) (Practice) Directions permits the commercial court to give further directions with regard to amendment of pleadings at the time of the pre-trial conference. Particularly the Constitution (Commercial Court) (Practice) Directions Statutory Instrument – Constitution 6 (3) provides as follows:

"Counsel appearing at the hearing will be expected to be aware of the issues and the principal contentions on each side and to be in the position to inform the court of them. In that event, the court may direct that no further pleading is required. "

The purpose of establishing the issues and principal contentions on each side is to get to the actual matter in controversy in the suit which if clearly delineated may not require any further amendment of pleadings. The flipside is the conclusion that further amendments to pleadings may be required on the basis of the principal issues and contentions of each side during the preliminary hearing. The rule suggests that the court may direct closure of further pleadings so as to set the suit for hearing.

It is the practice to conduct the scheduling conference and the pre-trial conference or preliminary hearing simultaneously particularly after the parties have filed their joint scheduling memorandum which in any case contains the points of agreement and disagreement thereby fulfilling the requirements of Order 12 of the Civil Procedure Rules which provides for the scheduling conference. In this case the joint scheduling memorandum was filed on 31 January 2014 and endorsed by Counsel for the parties. It constitutes an agreement under Order 12 of the Civil Procedure Rules since it embodies by agreement the points of agreement and the points of disagreement in the suit. It also has the list of documents which are admitted and those which are contested by either of the parties. It contains the list of witnesses and furthermore that the trial shall be conducted by the parties filing witness statements and having the witnesses subjected to cross examination and release examination only. Consequently what was left was for the Court to endorse the scheduling memorandum and conduct a preliminary hearing before fixing the suit for hearing.

In the premises an application for amendment can be made at any time before the hearing within the wording of Order 6 rule 19 of the Civil Procedure Rules. As far as the Commercial Court Division is concerned, the rule for amendment of pleadings is further supported by rule 6 of the Constitution (Commercial Court) Directions which permits the court to give directions with regard to further amendment of pleadings. The preliminary hearing under rule 6 (supra) can be held after the scheduling conference has been completed. The conclusion is that an application for amendment of pleadings ought to be made before the hearing but may be made so long as it does not cause injustice or prejudice to the other side at any time of the proceedings. It is therefore an exception to Order 12 rule 3 (1) of the Civil Procedure Rules which gives a timeline of 15 days within which to file all other interlocutory applications after completion of the scheduling conference. In the premises and in the circumstances of this case, the objection on the ground that the application was time barred cannot be sustained. It could only have been sustained on the ground that the court directed the Applicant to file the application for further amendment of the plaint and have it heard by 19 March 2014. However the Respondents sat on their rights and never objected when the application for amendment came for hearing notwithstanding the fact that they had not been served with the application.

On the question of prejudice to the Respondents, the Court will consider the previous amendments and pleadings of the Plaintiff on the question of neighbouring rights. It is true that this is not the first time the issue of neighbouring rights is being mentioned. The subject was touched when the parties appeared for the scheduling conference and the court was considering their joint scheduling memorandum. The issue of whether any of the Plaintiff's rights under the Copyright and Neighbouring Rights Act was infringed was hotly contested by the Respondents for the same reason.

In paragraph 3 of the amended plaint, the Plaintiff's suit is for declaration that the Defendant's use of the Plaintiff's speeches/addresses as ring tones constituted an infringement of his copyright. Secondly the suit is for an order of injunction restraining the Defendant from further violations of the Plaintiff copyright. An order for the audit of all proceeds of the sales of the Defendant from the use of the Plaintiff’s copyright and delivery up of the same to the Plaintiff and consequential damages. In the facts in support of the cause of action mentioned in paragraph 3 of the plaint the Plaintiff claims that he holds the copyright for the speeches delivered in the recent past which were being used as ring tones. All the amendments in the amended plaint deal with the violation and infringement by the Defendant of the Plaintiff’s copyright. Secondly the Plaintiff claims unjust enrichment by the Defendant at his expense.

By this application the Applicant/Plaintiff seeks to introduce a prayer that his neighbouring rights have been infringed. The two main grounds of the application are that the Applicant has already disclosed in the plaint the facts in support of the prayer and secondly that no prejudice would be occasioned to the Respondents if the proposed amendment is allowed.

In the case of Eastern Bakery vs. Castelino [1958] EA 461 Sir Kenneth O’Connor P at large 462 interpreted Order 6 rule 19 (rule 18 before revision) and summarised the previous precedents on the issue. The summary of the principles are that:

1. Amendments to pleadings sought before the hearing should be freely allowed, if they can be made without injustice to the other side, and that there is no injustice if the other side can be compensated by costs.
2. The court will not refuse to allow an amendment simply because it introduces a new case. But there is no power to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject matter of the suit:
3. The court will refuse leave to amend where the amendment would change the action into one of a substantially different character: or where the amendment would prejudice the rights of the opposite party existing at the date of the proposed amendment, e.g. by depriving him of a defence of limitation accrued since the issue of the writ:
4. The main principle is that an amendment should not be allowed if it causes injustice to the other side.
5. The principles applicable to amendments of plaints are equally applicable to amendments of written statements of defence.

In order to deal with the issue of whether the basis for the amendment by way of introduction of a prayer has facts or grounds thereof disclosed in the plaint, it is necessary to first define what neighbouring rights are. Under section 2 of the Copyright and Neighbouring Rights Act, 2006, "neighbouring rights"

"include rights of performing artists in their performances, rights of producers and music publishers and rights of broadcasting companies in their programmes and others as provided in Part IV."

Section 21 (1) of the Copyright and Neighbouring Rights Act (supra) provides that neighbouring rights and rights attached to the auxiliary role played by performance, producers of sound recording and audiovisual and broadcasting companies through the fulfilment of literary or artistic works; the provision of destiny and dominance in wax; and the diminishing of distance in the publication of works; respectively which auxiliary role is dependent on the work of the author and without which the role cannot begin. Specifically section 21 (2) of the Copyright and Neighbouring Rights Act provides as follows:

"The neighbouring rights attached to the auxiliary role of the performer or a producer or broadcasting company does not in any way affect the Copyright in a literary, scientific or artistic work from which it arose."

It is quite apparent from the provision of the law that neighbouring rights are attached to the auxiliary role of the performer or producer. Neighbouring rights are auxiliary to the rights of the copyright owner. For instance a drama group can perform a play which is written by the copyright owner. Broadcasting and bringing into fulfilment of literary or artistic works and neighbouring rights attached to the auxiliary role which is dependent on the work of the author and without which the role cannot begin. The word "auxiliary" in ordinary English and as defined by Chambers 21st Century Dictionary Revised Edition 1999 at page 89 means helping or supporting. It also means additional or extra, a helper, i.e. foreign troops that help and support another nation that is engaged in a war. The term "auxiliary" therefore means supporting or appended to the main works namely the author’s works. Neighbouring rights do not affect the literary, scientific or artistic work. The Copyright and Neighbouring Rights Act 2006 makes a distinction between copyright and neighbouring rights. According to Halsbury's laws of England volume 9 (2) (2006) (Reissue) paragraph 11, there is no copyright in the performance of the work as distinct from the work itself and performances are protected in their own right. Copyright on the other hand are rights defined by the Copyright and Neighbouring Rights Act.

Under section 4 of the Copyright and Neighbouring Rights Act the author of any work specified in section 5 of the Copyright and Neighbouring Rights Act shall have a right of protection of the work where the work is original and reduced to material form in whatever method irrespective of the quality of the work or the purpose for which it is created. Section 5 then lists the works eligible for copyright. It categorises literary, scientific and artistic works eligible for copyright. The economic and moral rights of the author are further specified. On the other hand neighbouring rights are governed by a different part of the Copyright and Neighbouring Rights Act namely Part IV.

By introducing a prayer to cater for neighbouring rights, the Applicant is introducing a new cause of action. Corollary to that it has to be established whether there are any facts to support the new prayers and whether the Respondents would be prejudiced thereby.

As far as the facts are concerned, there are no facts to support the assertion that neighbouring rights which are rights attached to the auxiliary role played by performance, producers of sound recording and audiovisual and broadcasting companies have been infringed. All along the Applicant/Plaintiff give facts indicating infringement of Copyright to certain speeches which were allegedly being used as ring tones by the Defendant/third party. The rights in issue that are disclosed in the plaint are the rights of a producer to the original work of the Plaintiff/Applicant. They are not rights attached to the auxiliary role of i.e. a performer or broadcaster. In any case no such facts are disclosed in the plaint and without considering any other point, the prayer for declaration of infringement of neighbouring rights cannot be sustained on the basis of the amended plaint which is already on the court record. The Plaintiff’s action is simply that the use of his speeches/addresses as ring tones infringed his copyright. The issue that had been framed was whether the Plaintiffs speeches are protected works under the Copyright and Neighbouring Rights Act. There was no suggestion that any auxiliary role played by the Plaintiff that is linked to an original work and the right thereto has been infringed or violated. There are no necessary facts which have been pleaded as alleged by the Applicant’s Counsel in terms of Order 6 rule 1 (e) of the Civil Procedure Rules being the facts constituting the cause of action and when it arose.

In the premises the proposed prayers by way of amendment of the Plaintiff’s prayers in the plaint to introduce in the words of the application a prayer for a declaration that the Plaintiffs neighbouring rights were infringed by the Respondent/Defendants is not supported by the averments in the plaint and are accordingly disallowed with costs.

Ruling delivered in open court the 5^th of May, 2014

Christopher Madrama Izama

Judge

Ruling delivered in the presence of:

Counsel Jet Tumwebaze appearing jointly with Counsel Paul Kuteesa for the Respondent

Counsel Milton Mugabe for the 3^rd Party

Counsel Nelson Walusimbi for the Applicant.

Charles Okuni: Court Clerk

Christopher Madrama Izama

Judge

5/May/2014