TWO Bongo Flava artistes Hamis Mwinyijuma “MwanaFA” and Ambwene Yesaya “AY” have asked the Ilala District Court to dismiss with costs the application by MIC Tanzania Limited, trading as Tigo, in the musical copyright dispute involving payments of 2.185bn/- damages.
In their application, Tigo moved the Dar es Salaam court under section 96 of the Civil Procedure Code to amend the judgment and decree dated April 11, 2016 for the payments to the two local musicians by including in its title the name of the third party, M/s Cellular Tanzania Limited, as one of parties.
However, Advocate Albert Msando, for the two musicians, told Senior Resident Magistrate in Charge Rita Tarimo that the court could not be moved under section 96 of the Civil Procedure Code to correct what is called accidental omission of not including the third party in t h e judgment and decree.
According to him, the non inclusion of the third party in the two legal documents could not be said to be accidental without proof that the trial magistrate accidentally committed such omis s i o n because as from the records, it is clear such third party only filed his defence and nothing else transpired thereafter.
He submitted that Tigo was aware of such fact and had taken up an appeal to the High Court, as could be reflected in one of grounds filed, which stated that the trial magistrate erred in deciding the case against them without making any finding on the third party from liability without passing any reason.
Msando submitted that it was, therefore, there was no any determination on the issues between either M/s Cellular Tanzania Limited and Tigo or such third party and the two musicians.
This, he said, might have been a mistake by the court, which could not amount at this stage to be called accidental omission.
He argued that such failure by the court to give directions after M/s Cellular Tanzania Limited had filed its defence and ultimately entering judgment and decree without including the third party cannot be cured under section 96, which is reserved for clerical or arithmetical mistakes.
“It is my humble submissions that such an error or omission if any can be cured either by way of an appeal which (Tigo) tried to do and failed or by way of review under section 78 and Order XLII of the Civil Procedure Code on the reason that there is an error apparent on the face of record,” he submitted.
The advocate insisted that the non inclusion of the third party was not a clerical or arithmetical mistake and could not in any way be said to be accidental, thus the court could not be moved under section 96. He said that in terms of Order I Rule 18 of the CPC, the third party was not joined properly as a party.
Msando further argued that during hearing of the suit, two issues were framed, notably on whether there were infringements of the muscle copyrights and what the reliefs the parties were entitled to. In these two issues, he said, the third party was not involved.
Therefore, he concluded, the court could not be moved at this stage to include M/s Cellular Tanzania Limited through what is termed as incidental omission under section 96 of the Civil Procedure Code, thus the application to include the third party in the judgment and decree could not be granted.
After hearing the submissions from both parties, Magistrate Tarimo said she would deliver her ruling on the matter on October 25. MwanaFA and AY instituted a suit at the Ilala District Court, claiming Tigo to have used their copyrighted musical works without their consent.
Before commencement of the hearing, Tigo 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 Sonny Music Entertainment Africa Limited, a company which had contract with the sound producers.
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 Tigo, awarding specific damages to the tune of 2,185,000,000/- in a favour of the two local musicians.