Airtel Uganda Limited v Konshens & 3 Others (Miscellaneous Application 560 of 2024) [2024] UGCommC 236 (9 August 2024)

Full Case Text

#### THE REPUBLIC OF UGANDA

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

# **MISCELLANEOUS APPLICATION NO. 0560 OF 2024** (ARISING FROM CIVIL SUIT NO. 0545 OF 2015)

## AIRTEL UGANDA LIMITED :::::::::::::::::::::::::::::::::::: **VFRSUS**

- 1. GARFIELD SPENCE a.k.a. KONSHENS - 2. MTFCH LIMITED - 3. ONMOBILE GLOBAL LIMITED

# 4. SOLUNET BUSINESS SOLUTIONS LIMITED ::::::::::::::::::::::::::::::::::::

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

#### **RULING**

#### **Background**

The Applicant brought this application by notice of motion under Section 33 of the Judicature Act, Section 98 of the Civil Procedure Act and Order 52 Rules 1 and 3 of the Civil Procedure Rules seeking orders that:

- 1. Execution of the Judgment and Decree in High Court Civil Suit No. 0545 of 2015 be stayed pending hearing and final determination of Civil Appeal No. 1639 of 2023. - 2. Costs of this application be provided for.

Briefly, the grounds of this application are that:

- 1. On 21st August 2023, this Honourable Court delivered its judgment in Civil Suit No. 0545 of 2015 ("the main suit") against the Applicant. - 2. The Applicant was dissatisfied with the judgment and it filed a notice of appeal on 24th August 2023. - 3. The Applicant also later filed Civil Appeal No. 1639 of 2023 ("the appeal") in the Court of Appeal. - 4. The appeal is pending hearing and it has a high likelihood of success. - 5. The 1st Respondent's bill of costs was filed and taxed on 13th March 2023 yet the appeal substantially affects some of the items in the allowed bill.

- 6. If this application is not granted, the appeal will be rendered nugatory. - 7. The Applicant shall suffer irreparable loss if this application is not granted. - 8. The Application has been made without any delay. - 9. The Applicant is a public company that is listed on the Uganda Securities Exchange, a holder of a twenty-year telecom operator license from the Uganda Communications Commission and one of the leading tax payers in Uganda, so there is no risk that it will fail to satisfy the final decree. - 10. In the alternative, the Applicant is ready and willing to deposit security for due performance of the decree as may be determined by the Court. - 11. It is in the interest of justice and equity for this application to be granted.

The application is supported by the affidavit of Mr. Hudson Andrew Katumba, the Applicant's Legal Manager. He stated that on 21st August 2023, this Court delivered its judgment in the main suit where it found that the Applicant and the 3rd Respondent had infringed on the 1st Respondent's copyright in respect to 8 of his songs. The Court awarded the Plaintiff general damages of USD 180,000, exemplary damages of UGX 20,000,000, interest at the rate of 15% per annum on general damages from the date of filing the suit until payment in full, interest on exemplary damages at a rate of 10% per annum from the date of judgment until payment in full and costs of the suit.

Mr. Katumba stated that the Applicant was dissatisfied with that judgment and it filed a notice of appeal and a letter requesting for typed proceedings on 24th August 2023. The Applicant later filed Civil Appeal No. 1639 of 2023 in the Court of Appeal against the judgment. On 16th November 2023, the 1st Respondent's filed a bill of costs which was, on 13th March 2023, taxed and allowed at UGX 27,740,000. These were steps towards realisation of the awarded costs in the main suit yet Item No. 2 on instruction fees in the said bill is premised on the damages being challenged in the appeal.

Finally, Mr. Katumba asserted that the appeal has a high chance of success and that it will be rendered nugatory if this application is not allowed. Since the $1st$ Respondent is a foreigner with no known assets within the jurisdiction of this Court capable of being attached in the event that the appeal succeeds, the Applicant is likely to suffer substantial and irreparable loss if execution proceeds. On the other hand, the Applicant is listed as a public company on the Uganda Securities Exchange, is a holder of a twenty-year telecom operator license from the Uganda Communications Commission and is one of the leading tax payers in Uganda. Thus, there is no risk that the Applicant will fail to satisfy the decretal sum if the appeal fails. However, the Applicant is still ready and willing to provide security for the performance of the decree as may be determined by the Court.

The 1st Respondent opposed the application through an affidavit in reply sworn by Ms. Olivia Nakitto Tibayeita under the authority of the 1st Respondent. She told the Court that there is no actual or present threat to execute the decree in the main suit because the 1st Respondent has not taken any steps to realise the decretal sum apart from taxation of the bill of costs that was concluded on 13th March 2024. For that reason, the Applicant is not bound to suffer any loss if the instant application is not granted because there are no execution proceedings commenced by the $1^{st}$ Respondent.

Ms Nakitto further stated that the appeal was filed in bad faith only to delay the 1st Respondent's enjoyment of the fruits of the judgment in the main suit since the Applicant has no arguable grievance on appeal against the 1st Respondent. Since the 1st Respondent is an international music artiste with no reputation of failing to pay his debts and since he has severally performed in Uganda, there is no likelihood that he will fail to refund the decretal sum in the event that the appeal succeeds. She concluded that, due to the Applicant's several admissions at the trial, this is an ideal case in which the Applicant should be required to deposit at least 50% of the decretal sum as security for due performance of the decree in case this application is to be allowed.

The $2nd$ Respondent also opposed the application through an affidavit in reply sworn by Mr. William Cheshire, its Chief Executive Officer, East Africa. He told the Court that this application is premature and incompetent since there is no threat of execution. He affirmed that the appeal has no possibility of success and that taxation of the bill has no bearing on that appeal. He averred that the Applicant will not suffer any substantial loss if this application is disallowed as it has not demonstrated that the $1^{st}$ and $2^{nd}$ Respondents lack the capacity to repay the taxed costs if the Applicant's appeal succeeds. Finally, he remarked that it is the 2nd Respondent who will suffer substantial loss if this application is granted since it has been prosecuting this matter since 2015.

The $3^{rd}$ and $4^{th}$ Respondents did not file any affidavit in reply to the application.

The Applicant filed an affidavit in rejoinder to the two affidavits in reply which was still sworn by Mr. Hudson Andrew Katumba. He challenged the competence of the 1st Respondent's affidavit in reply asserting that the purported authority from the 1st Respondent to Ms. Nakitto to swear the affidavit was neither signed by the 1st Respondent nor sent through his personal email. He then reiterated the contents of his affidavit in support of the application.

#### **Issues arising**

- 1. Whether the $1^{st}$ Respondent's affidavit in reply is incurably defective. - 2. Whether the execution of the decree in Civil Suit No. 0545 of 2015 should be stayed pending the hearing and final disposal of Civil Appeal No. 1639 of 2023 by the Court of Appeal. - 3. What reliefs are available to the parties.

### **Representation and hearing**

At the hearing, the Applicant was represented by Mr. Kanyike Yusuf and Mr. Coleman Ntungwerisho of M/S Katende, Ssempebwa & Co. Advocates. The 1st Respondent was represented by Mr. Baguma Cyrus of M/S Kalenge, Bwanika, Kisubi & Co. Advocates. The 2nd Respondent was represented by Mr. Mumbere Abraham of M/S Ortus Advocates. The $3^{rd}$ and $4^{th}$ Respondents did not enter appearance. All counsel filed written submissions to argue the application. I have carefully considered those submissions, the laws and authorities cited and all the other materials on the record while deciding this application.

### Determination of the issues

### Issue 1: Whether the 1st Respondent's affidavit in reply is incurably defective.

The courts have consistently held that an affidavit which is deponed on behalf of another person without his or her written authority is defective in line with Order 1 rule 12 of the Civil Procedure Rules. (See Samuel Kabagambe Ntungwa & 2 Ors V Florence Kekibuga Ntungwa, HCMA No. 110 of 2022).

However, it is also true that, as long as a deponent of an affidavit is conversant with the facts and can swear positively to them, his or her affidavit is competent. As held in Bankone Limited V Simbamanyo Estates Limited, HCMA No. 645 of **2020**, the overriding consideration in assessing the competence of an affidavit is the knowledge or belief of the deponent and not authorisation of the party to

the litigation. This flows from the cardinal principle of evidence law which is that, as a general rule, evidence is admissible as long as it is relevant to a fact in issue or a relevant fact. (See Kuruma s/o Kaniu V R [1955] AC 197).

In paragraph 1 of her affidavit, Ms. Nakitto stated that she was well versed with all matters in this application and that she had been duly authorised by the 1st Respondent to swear the affidavit in reply in that capacity. In the remainder of the affidavit, she presents statements of belief concerning facts told to her by the $1^{\text{st}}$ Respondent's counsel. She then annexed an email said to be from the $1^{\text{st}}$ Respondent authorising her to swear the affidavit. However, the email is not signed off by the 1st Respondent himself. There is also nothing in it that suggests that the 1st Respondent personally permitted Ms. Nakitto to swear the affidavit.

It is abundantly clear to me that the said authorisation is imperfect and defective since it does not definitively confirm that it is the $1st$ Respondent who actually permitted Ms. Nakitto to swear the affidavit in reply on his behalf. Nonetheless, I am convinced that, in this context, lack of authorisation to depone an affidavit is not a fatal defect. It is can be overlooked as long as the deponent of the affidavit has actual knowledge of the facts deponed to or if, in an interlocutory application like the present one, he or she truly believes that whatever he or she swears to is true and correct, in accordance with Order 19 Rule 3(1) of the Civil Procedure Rules. The Applicant has not contested Ms. Nakitto's beliefs in the contents of her affidavit and this Court has no reason to doubt them.

I, thus, find that the $1^{st}$ Respondent's affidavit in reply is not incurably defective.

Issue 2: Whether the execution of the decree in Civil Suit No. 0545 of 2015 should be stayed pending the hearing and final disposal of Civil Appeal No. 1639 of 2023 by the Court of Appeal.

In an application of this nature, an applicant must show that he or she has filed a notice of appeal, that the application is made without unreasonable delay, that the intended appeal is not frivolous and has a high likelihood of success and that he or she has given security for due performance of the decree. (See **Lawrence** Musiitwa Kyazze V Eunice Businge, SC Civil Application No. 18 of 1990). Such an applicant must also show that there is a serious or imminent threat of execution of the decree, that the appeal would be rendered nugatory if the application is not granted and that refusal to grant the stay would inflict more hardship than it would avoid. (See Kyambogo University V Prof. Isaiah Omolo Ndiege, CA Civil Application No. 341 of 2013).

I will now consider this application in view of the above requirements.

# (a) That the Applicant has filed a notice of appeal.

The Applicant filed a notice of appeal against the decision in the main suit on 24th August 2023. The Applicant also later filed its appeal against that decision in the Court of Appeal vide Civil Appeal No. 1639 of 2023. This requirement has thus been satisfied.

### (b) That the application is made without unreasonable delay.

Whether an application has been filed without unreasonable delay depends on the facts and circumstances of each individual case. The reckoning of time in the determination of whether a delay is unreasonable or not begins at the time the decree or order is sealed and becomes enforceable.

The decree in the main suit was signed and sealed by this Court on 31st August 2023. The 1st Respondent's bill of costs was filed on 16th November 2023 vide Taxation Application No. 1485 of 2023. It was taxed and allowed on 13th March 2024. This Application was then filed 25th March 2024 (nearly 7 months after the decree was sealed by the Court). Counsel for the Applicant explained that the threat of execution only presented itself on 13th March 2024 when the bill of costs was taxed and allowed. Considering the flow of all these events, I find that the delay in filing this application was not unreasonable.

## (c) The appeal is not frivolous and has a likelihood of success

There is a legal presumption in favour of the integrity of the proceedings of any court of general jurisdiction. The administration of justice rests largely upon the presumption that a court, acting within its jurisdiction, has acted impartially and honestly. A final judgment of that court is thus always presumed to be right. As a result, the court must be satisfied that an appeal against that judgment has high chances of success if it is to stay execution of the same. (See Junaco (T) Limited & 2 Ors V DFCU Bank Limited, HCMA No. 0027 of 2023).

There should always be a real possibility that the appellate court will alter and depart from the trial court's decision for execution of that decision to be stayed.

However caution should be taken not to descend into a detailed analysis of the merits of the appeal. A brief review of the appeal's chances of success suffices.

The Applicant summarised its grounds of appeal in paragraph 11 of the affidavit in support. The gist of the Applicant's grievances is that this Court was wrong to find that the suit songs were not within the scope of the Caller Ring Back Tune Agreement between the Applicant and the 3rd Respondent. The Applicant also believes that the Court was wrong in finding that the Applicant was not entitled to indemnity from the 2nd Applicant and in awarding damages and interest that were high and excessive to the $1^{st}$ Respondent.

Without delying into the merits and details of the appeal, I recall that, at the trial, the Applicant admitted that the suit songs belong to the 1st Respondent, that the suit songs were uploaded and vended on its website to its benefit but without the $1^{st}$ Respondent's consent and that it never paid anything to the $1^{st}$ Respondent for the suit songs. I also recall that the copy of the Caller Ring Back Tune Agreement between the Applicant and the 3rd Respondent adduced in evidence did not name any of the suit songs as those in respect of which the 3rd Respondent had consent from the author to create derivative works from. There is also a long history of precedents from this Court and other courts of record in Uganda and elsewhere in the Commonwealth in which indemnity clauses have been disregarded once the parties seeking to rely on them are proved to have been grossly negligent in allowing or enabling the breach to occur.

The other category of the grounds of the appeal is that challenging the awards on damages and interest as being high, excessive and irregular. Again, without delving into the merits of these grounds, I also do not agree that they are all highly likely to succeed. I am convinced that the award of damages was actually more than modest as it was based on only a portion of what the 1st Respondent ordinarily charged for licensing the suit songs and not on the entire fee, yet this was also an option available to the Court at the time.

In view of this analysis, I do not agree with the Applicant that its appeal has high chances of success or that its qualms over the decision in the main suit are as straightforward as it has made them out to be. The appeal is not a slam dunk and its probability of success remains debatable.

(d) The appeal would be rendered nugatory if the application is disallowed. If the execution of a decree or order does not impair the character of an appeal by rendering some or all of the grounds raised therein moot, that execution will not be stayed. As a general position, execution by enforcing the satisfaction of a money decree does not ordinarily pose any danger to the viability of the appeal due to the doctrine of restitution that allows an appellate court to order a judgment creditor who had already recovered the decretal sum through execution before the disposal of the appeal to refund that decretal sum, or any part thereof, to the judgment debtor upon the latter's success in the appeal.

First, it should be noted that the decree in the main suit is a purely money decree since it requires the payment of money to the $1^{st}$ and $2^{nd}$ Respondents and does not avail any other non-pecuniary reliefs to them. Second, it is clear from the Applicant's grounds of appeal in paragraph 11 of its affidavit in support of this application that the only intended effect/result of the appeal is to reverse this Court's monetary awards. I am convinced that the Applicant can still successfully prosecute the appeal even if execution ensues now. If the Applicant eventually succeeds in the appeal, the decretal sums are recoverable from the $1^{st}$ and $2^{nd}$ Respondents. Execution of the decree in the main suit at this moment will not impair the potency and relevance of the appeal irreparably, if at all.

## (e) There is a serious or imminent threat of execution of the decree or order if *the application is not granted.*

For an order of stay of execution to be issued, there must be an immediate and direct danger/risk that the decree will be executed before the disposal of the applicant's appeal. The judgment creditor should have taken overt steps aimed at enforcing the decree. A stay of execution cannot be granted on the basis of a presumed or anticipated danger of execution. Delivery of judgment against the applicant is not, in and of itself, enough to prompt the Court to stay execution.

In Junaco (T) Limited & 2 Ors V DFCU Bank Limited, (supra), this Court held that examples of steps which would definitely indicate a serious expression of intent to execute include the extraction of the decree, the filing and taxing of the bill of costs, the filing of an application for issuance of a warrant and the issuance of a notice to show cause why execution should not issue, among others.

In the instant facts, the 1st Respondent extracted the decree from the judgment in the main suit and the same was endorsed and sealed by the Court on 31st

August 2023. It then filed its bill of costs on 16th November 2023 and had it taxed and allowed on 13th March 2024.

Contrary to the 1st and 2nd Respondent's claims, these actions, in law, constitute overt steps taken with a view to enforcing the decree. These steps also show that there is an imminent prospect of execution of the said decree in the main suit before the disposal of the appeal. Therefore, this requirement is satisfied.

### (f) Substantial loss may result to the Applicant unless the stay is granted.

The phrase "substantial loss", in this context, does not refer to any particular quantum of money that could be lost if the application is not allowed. It, instead, refers any loss of real value, as distinct from *peppercorn* loss. An applicant must establish that the impending execution is bound to create a state of affairs that will affect the Applicant's interests and which cannot be undone once inflicted. In Junaco (T) Limited & 2 Ors v DFCU Bank Limited, (*supra*), this Court held that:

"The court has to balance the interest of the applicant who is seeking to preserve the status quo pending the hearing of the appeal so that his or her appeal is not rendered nugatory and the interest of the respondent who is seeking to enjoy the fruits of his or her judgment (see Alice Wambui Nganga v John Ngure Kahoro and another, ELC Case No. 482 of 2017 (at Thika); [2021] eKLR). For that reason, execution of a money decree is ordinarily not stayed since satisfaction of a money decree does not amount to any substantial loss or irreparable/irreversible injury to the applicant, where the respondent is not impecunious, as the remedy of restitution is available to the applicant in the event the appeal is allowed." Emphasis mine.

I cite the above dictum with approval. Again, it is evident that, when it comes to applications for stay of execution, the law treats money decrees differently from other decrees providing non-monetary reliefs to judgment creditors. Since the decretal sum can be ordered to be refunded after judgment in the appeal, no substantial loss can be said to arise if such a decretal sum is recovered by the judgment creditor before the appeal is decided.

Substantial loss is not the ordinary loss to which every judgment debtor is necessarily subjected when he or she loses the case and is deprived of his or her property as a consequence. Substantial loss is only that loss which is truly

irreparable, thereby negating the very essence of success in the appeal for the judgment debtor. In the instant facts, the Applicant has not proved that the 1st Respondent is impecunious or that he will be unable to refund the decretal sum if the appeal succeeds. The only loss which the Applicant is bound to suffer if execution ensues before the appeal is decided is that loss which is ordinarily expected to be suffered by a judgment debtor when he or she loses the case. There is nothing that is, exclusively, substantial or irreparable about such loss.

## (*g*) The Applicant has given security for due performance of the decree.

While considering whether to stay execution of a decree or not, the court must be alive to the delicate balance between the need to uphold the respondent's right to be protected from the risk that the appellant may not satisfy the decree and the applicant's right to appeal. The court retains the discretion on the form or amount of security to be ordered, or if to order any security at all, as a condition for staying execution of the decree.

In the present facts, the Applicant made it clear that, being a leading tax payer listed on the Uganda Securities Exchange and with a 20-year telecom-operator license, the Applicant will be able to satisfy the decree if it loses the appeal. On the other hand, it was argued for the 1st Respondent that he is an internationally renowned music artiste who has performed in Uganda several times, and that since he has not been proved to be unable to pay his debts in the past, there is no fear that he will be unable to refund any part of the decretal sum if the execution proceeds now and the appeal is later decided against him.

Counsel for the Applicant and the 1st Respondent both argued in the alternative that, if this Court is inclined to allow this application, it can condition the stay of execution on the deposit of some security. Counsel for the Applicant argued that security in the form of a bank guarantee for payment of 2% of the decretal sum would be a fit and proper condition while counsel for the 1st Respondent argued that a deposit of security being 50% of the decretal sum would be adequate.

It is not disputed that the Applicant is yet to give security for due performance of the decree or order in this case. The Court retains the discretion to order the Applicant to deposit due security in view of the overall justice of the case putting into regard the divergent interests of the parties. As such, whether the Court should order the Applicant to deposit security for the due performance of the decree as a condition for staying the execution of the decree will be conclusively decided in the next issue dealing with remedies.

# (h) Refusal to grant the stay would inflict more hardship than it would avoid.

While a successful party is entitled to enjoy the fruits of the judgment, caution ought to be exercised if that judgment is on appeal to a higher court. It should, nonetheless, be borne in mind that, at this stage, the appeal is yet to be decided and the applicant's grievances with the decision of the trial court may or may not succeed on appeal. Another important factor in this delicate balancing role played by the courts in dealing with applications for stay of execution orders is, therefore, whether refusal to grant the stay would inflict more hardship on one party than it would avoid for the other.

On one hand, this Court is faced with the 1st Respondent who is an international music artiste. He has been pursuing compensation for the illegal appropriation of his songs against the Applicant and the 2nd, 3rd and 4th Respondents for nearly 10 years now. When the trial ended and judgment was delivered in his favour, the Applicant, almost immediately, appealed to the Court of Appeal. In the same vein, the Court is dealing with the 2nd Respondent who has also been before the Court in this matter for the same period of time and is yet to recover its costs. On the other hand, the Court is also faced with the Applicant, a reputable public company holding a 20-year telecom-operator license which remains one of the leading tax payers in Uganda, and which is entitled to its day in court before the Court of Appeal.

In my considered view, denying the 1st and 2nd Respondents the opportunity to recover their respective decretal sums from the Applicant after all this time will inflict much more hardship on them compared to the inconvenience that would be avoided if this application is allowed thereby protecting such an affluent and reputable telecom operator from recovery pending the disposal of the appeal. Given its said status, the Applicant should hardly find a problem paying off the decretal sum even before the appeal is decided. On the other hand, not having the same economic might, the 1st and 2nd Respondents would be much more heavily inconvenienced if they are not allowed to recover their decretal sums after all this time.

This perspective has also been heavily reinforced by the fact that the Applicant actually admitted at the trial that it allowed its website to be used to vend the 1st Applicant's songs without his consent. The substance of the issues before the Court of Appeal is, therefore, not about whether the Applicant breached the 1st Respondent's copyright because that is already admitted by the Applicant. The appeal is mainly about whether the 1st Respondent should be indemnified for its copyright infringement. In the premises, I find that the $1^{st}$ and $2^{nd}$ Respondents are likely to suffer much more if the application is allowed than the Applicant would suffer if the application is disallowed.

#### (i) Conclusion

The detailed consideration of the legal requirements for grant of an order of stay of execution in this issue has produced mixed results for the Applicant in this application. The Applicant not only filed a notice of appeal against the judgment and decree in the main suit but it has already gone ahead to actually lodge the appeal which is now pending before the Court of Appeal. I remain ambivalent about that appeal's chances of success. In the meantime, while this application was filed without undue delay, it is unlikely that any substantial loss will result to the Applicant if it is not allowed. While there is a serious threat that execution will ensue before the disposal of the appeal by the Court of Appeal, the refusal of this application is unlikely to inflict any more hardship on the Applicant than it would avoid for the $1^{st}$ and $2^{nd}$ Respondents.

I am alive to the fact that the 1st Applicant is neither a citizen nor a resident of Uganda. Apart from severally performing on shows in Uganda in the past, the $1st$ Respondent does not have any office or other physical presence in Uganda. He also does not have any known assets in Uganda to which recourse can be had for recovery purporses in case he loses the appeal.

One could argue that this will complicate recovery of the decretal sum from him if execution ensues now and he later loses the appeal. However, this factor, for me, still does not tilt the result of this application in the Applicant's favour for the very simple reason that, irrespective of the result of the appeal, there is no iota of doubt or uncertainty that the 1st Respondent is entitled to compensation for the illegal use of his songs by the Applicant through its website. In other words, the appeal primarily challenges who, between the Applicant and the 2nd, 3rd and 4th Respondents, is to make good and pay for the copyright infringement.

I again note that the appeal also challenges the quantum of damages awarded and the interest awarded. However, I reiterate that that challenge also has little probability of success as the quantum of the general damages awarded was not even the whole but only a portion of what the 1st Respondent ordinarily charged licensees for his songs. Even if the Court of Appeal decides that that assessment of damages proceeded along erroneous principles or that the proper principles were wrongly applied by this Court, the 1st Respondent can always be ordered to refund the difference between what he would have recovered in execution and what was his due entitlement.

In the interests of justice, however, since the appeal contests the Court's awards of damages and interest, the Applicant shall be allowed to retain a small portion of the decretal sum pending the disposal of the appeal. The Court will, therefore, issue a partial stay of execution in respect of only a small portion of the decretal sum. As such, this issue partially succeeds.

### Issue 3: What reliefs are available to the parties.

As found in the preceding issue, the balance of convenience heavily favours the $1^\ensuremath{\text{st}}$ and $2^\ensuremath{\text{nd}}$ Respondents. Since it is already certain that the $1^\ensuremath{\text{st}}$ Respondent is entitled to pay for the infringement of his copyright, all that is left to be settled through the appeal is whether this Court's assessment of damages was right and whether, after compensating the 1st Respondent for copyright infringement, the Applicant should be indemnified and also compensated by the 3rd Respondent.

In principle, I am unable to see why the 1st Respondent's recovery should be delayed any longer when his entitlement to compensation remains uncontested and when the Court more than modestly assessed his damages basing only on part of what he ordinarily charged licensees for the suit songs as opposed to founding the assessment on the whole sum which he ordinarily charged.

The Court shall elect not to impose any condition for deposit of security as a condition to stay execution. Instead, the Court will allow the 1st Respondent to recover a substantial part of the decretal sum from the Applicant pending the disposal of the appeal. To allay the Applicant's fears on the quantum of damages and interest awarded which is part of the subject of the appeal, the Court deems it fair and just to allow the 1st Respondent to recover no more than 70% of his decretal sum pending the disposal of the appeal. If the appeal determines in the

1st Respondent's favour, he can then proceed to recover the remaining 30% of his decretal sum from the Applicant but, if the appeal determines in the Applicant's favour, the portion of the 70% of the decretal sum that the 1st Respondent would have already recovered which would have been found to be in excess of what is due to him will always recoverable from him.

Similarly, the 2nd Respondent may also recover 70% of its costs of the main suit from the Applicant before the disposal of the appeal.

For the avoidance of doubt, since the 3rd Respondent is yet to obtain an order staying the execution of the decree in the main suit against it, the 1st and 2nd Respondents remain at liberty to execute the decree against it notwithstanding the pendency of the appeal.

This application has largely failed. In view of the protracted history of this legal dispute and the need for finality of litigation, each party shall bear its own costs.

Consequently, I make the following orders:

- An order is hereby issued restraining the $1^{st}$ and $2^{nd}$ Respondents and $i.$ their employees or agents from recovering more than 70% of the sums due to them, respectively, in the decree in Civil Suit No. 0545 of 2015 before the hearing and final determination of Civil Appeal No. 1639 of 2023 by the Court of Appeal. - ii. Each party shall bear their own costs.

cadentes

Patricia Mutesi JUDGE $(09/08/2024)$