THE Ilala District Court yesterday dismissed three grounds of objections raised by two Bongo Flava artistes Hamis Mwinyijuma “MwanaFA” and Ambwene Yesaya “AY” in the musical copyright dispute involving MIC Tanzania Limited, alias Tigo, over payments of 2.185bn/- damages.
Senior Resident Magistrate in charge Rita Tarimo ruled against the two local musicians after observing that their grounds lacked legal basis. In the grounds raised, the two musicians were seeking to oppose to the hearing of application filed by Tigo with a view to correct names and parities to the dispute.
The two musicians, who are respondents in the application, had contended that the application was hopelessly time barred and bad in law for being preferred under a wrong provision of law and that it was against a person who was not a party to the original proceedings.
In her ruling, however, the magistrate pointed out that the provision under section 96 of the Civil Procedure Code relied upon by Tigo, the applicant, in the matter was applicable and allows amendments where there are omission and clerical errors in the judgment of the court.
She explained further that the question relating to the omission of the third party in the judgment of the court could not be discussed at the stage of hearing a preliminary point of law, but during the hearing of the application on merits.
Under such circumstances, the magistrate overruled all the grounds of objections and set the case for hearing of the application on October 18.
In the application, the applicant is requesting the court to amend the judgment and decree of the court dated April11, 2016, as to correct clerical mistakes and accidental omissions to include the third party, M/s Cellular Tanzania Limited and corrections of names of the respondents. Looking at the judgment and decree, it is evident that there are clerical mistakes in the names of the respondents.
Whereas the name of Hamis Mwinjuma as it appears in the judgment is written Hamis Mwinyijuma in the plaint suit. Also the name of Ambwene Yessayah in the judgment is written Ambwene Yesaya in the original plaint.
Furthermore, the third party, M/s Cellular Tanzania Limited as one of the parties in the suit as per the records was accidentally omitted in the judgment and decree.
The Advocate Herman Lupogo, who is representing Tigo, has deponed an affidavit to support the application, stating that the respondents instituted a suit at the Ilala District Court, claiming the applicant has used their copyrighted musical works without their consent.
He states that the applicant negated the claims in that the contentious musical works were legally procured from another person other than the respondents, among other reasons.
Before commencement of the hearing, the applicant filed an application for leave to issue a third party notice against M/s Cellular Tanzania Limited, which through a contract had sold the contentious musical works to it.
The third party filed its written statement of defence essentially admitting the claims that it [procured the said musical works from a company called Sony Music Entertainment Africa Limited, a company which had contract with the sound producers.
It is stated that such third party did not appear at the hearing and the case proceeded in their absence to finality. Upon a decision, the judgment was delivered against the applicant awarding specific damages to the tune of 2,185,000,000/- and general damages of 265m/-.