Ian Murphy v Zambia Tourism Agency (Appeal No. 299 of 2023) [2025] ZMCA 75 (20 June 2025)

IN THE COURT OF APPEAL OF ZAMBIA Appeal No. 299 of 2023 HOLDEN AT KABWE (Civil Jurisdiction) BETWEEN: IAN MURPHY AND 2 a JUN 2025 APPELLANT ZAMBIA TOURISM AGENCY RESPONDENT CORAM: SIAVWAPA JP, CHISHIMBA & PATEL, JJA On 20t h May & 20th June 2025 For the Appellant: Mr. P. K. Chibundi & Mr. M . Mushokabanji Messrs. Mosha & Company For the Respondent: Mr. E. Mutale Messrs. Musa Dudhia & Company i,.---- JUDGMENT Patel, JA, delivered the Judgment of the Court. J1 Cases referred to: 1. Kapwepwe v Zambia Publishing Co. Ltd (1978) ZR 15 2. Banks v EMI Songs Limited (formerly CBS Songs Limited) (No.2) (1996) E. M . L. R, 452 Ch. 3. Wilson Masauso Zulu v. Avondale Housing Project Limited (1982) ZR 172 Legislation & Rules referred to: 1. The Copyright and Performance Rights Act, Chapter 406 of the Laws of Zambia J2 1.0 INTRODUCTION 1.1 This is a consolidated appeal against the Judgment of Musona J, delivered on 24t h May 2023, in respect of a Copyright Infringement Action commenced by the Appellant against the Respondent. 1.2 The Hon. Judge in the lower Court decided in favour of the Appellant, which is now the subject of the appeal before us. 1.3 It is worth noting that in this Court, both Parties being dissatisfied with the Judgment of the lower Court, launched two separate appeals under Cause Numbers CAZ/08/287/2023 and CAZ/08/316/2023, on 9th June 2023 and 26t h June 2023 respectively. On 18t h August 2023, by way of a Consent Order issued by a single Judge of the Court, it was ordered that the appeals be consolidated and carried on as one appeal. However, and regrettably, the parties who ought to have proceeded by way of appeal and cross appeal, both continued as though they were Appellant and Respondent in each of the appeals causing confusion to the Record and the nomenclature of the parties. 1.4 For the sake of clarity and to maintain consistency throughout this Judgment, we shall refer to the parties as Ian Murphy, the Appellant, and the Zambia Tourism Agency, the Respondent. We will also deal with the grounds and heads of arguments filed as though they were filed in support of the appeal and cross appeal respectively. 1.5 The Appellant is well known professional photographer and author of the copyright in the photographs taken by him at his cost and expense on various J3 dates such as 24th December 2006 of images referred to as 'Kasanka Bats,' on 7th September 2008 'Lake Bangweu/u, on 11th April 2009 'Elephant Riding' and 14th August 2009 'Kuomboka Ceremony'which were taken for his revised edition of his book on Zambia. These will collectively be referred to as the "Appellant's images." 1.6 The Respondent is a body corporate established through an Act of Parliament with a mandate to promote and market Zambia as a tourist destination, a role it fulfills through publication of promotional materials such as calendars, brochures and or billboards. Its predecessor was known as Zambia Tourism Board. 1.7 The dispute centers around the use by the Respondent of the Appellant's images, which is alleged to be without permission and compensation, constituting a violation and infringement of the Appellant's rights in accordance with the provisions of the Copyright and Performance Rights Act. ('The Act'). 1.8 This appeal asks us to interrogate the provisions of the Act and seeks to assail the Judgment of the lower Court on grounds that are canvassed by the Parties respectively. 1.9 Reference to page numbers shall refer to the Record of Appeal unless otherwise stated. 2.0 BACKGROUND 2.1 The Appellant (Plaintiff in the Court below), commenced an action against the Respondent (Defendant below), on 8th September 2016, by way of Writ of Summons and Statement of Claim seeking the following reliefs: i. An order for delivery up to the Plaintiff of all copies of the Plaintiff's photographs, digital and/or otherwise, in the Defendant's possession, power, custody or control; ii. An inquiry as to damages for copyright infringement and payment of all sums found due upon taking such inquiry with interest thereon; iii. Special and/or exemplary damages for continued infringement when the Defendant is fully aware of and admitted the infringement hereof; iv. Damages for conversion; v. Damages for passing off of the Plaintiff's work as that of the Defendant; vi. Costs vii. Further or other reliefs as the Court may deem fit 2.2 The background to this appeal, though somewhat murky, is that the Appellant and the Respondent appear to have been engaged in a business relationship. What is not clear is the date of their engagement, the terms of that engagement and whether the Respondent acquired any proprietary interest in the Appellant's images. Simply stated, there is no agreement before the Court. 2.3 It is undisputed that sometime in 2011, the Respondent engaged the Appellant to produce its calendar for the year 2012. Subject to this agreement, it is noted that the Appellant was to supply the Respondent with JS images for the calendars and print the calendars, and the Respondent would approve these images for use in exchange for monetary compensation at the price of K109, 500 (rebased). 2.4 According to the Appellant, sometime in January 2012, he became aware that the Respondent had engaged a Third Party to print the calendars. According to the Appellant, his photographs were used through billboards/ posters, the Respondent's Brochure, the Respondent's 2013 Calendar as well as at the arrival hall of Kenneth Kaunda International Airport to name a few. Some of the images are noted from pages 99 to 102 of the record. 2.5 According to the Appellant, the manner in which the Respondent came into custody of the images was unknown to him and was without his express or implied permission and licence. 2.6 Consequently, the Appellant, after attempts to settle the matter amicably, commenced an action against the Respondent in the lower Court. 2. 7 The Respondent's Amended Defence filed 22nd May 2017, is noted at page 112 to 115 of the Record. 2.8 The lower court rendered its decision in favour of the Appellant, as noted from pages 11 to 23 of the Record. 3.0 DECISION OF THE LOWER COURT 3.1 The learned Judge noted that the Appellant was the copyright owner of the disputed works and that the Respondent had no authority to produce the J6 works that the Appellant did as required by Section 17 (1) of the Copyright and Performance Rights Act 1 . 3.2 The lower Court held that it was very clear that the artworks to be printed were identified by the Respondent. He found that the Third Party merely printed the works as contracted by the Respondent. He noted that the evidence on record did not show that the Third Party knew or was possessed with sufficient reason to suspect that the works they were contracted to do were an infringement on somebody's proprietary rights. On that basis, the learned Judge found no liability on the part of the Third Party and accordingly dismissed the claim against the Third Party. 3.3 The learned Judge proceeded to address each of the Appellant's claim in turn. With regard to 2.1 (i) above, the learned Judge noted that there was no dispute that the Respondent was in possession of the material, some of which were calendars and billboards. The learned Judge found nothing wrong with the Respondent' s possession the aforementioned materials, provided they were lawfully acquired by the Respondent from the Appellant and were paid for by the Respondent. He accord ingly declined to grant this relief. 3.4 Concerning 2.1 {ii), the learned Judge found that it was clear that the Respondent contracted the Third Party to print the disputed works. He also noted that no evidence was adduced to show that the Respondents were authorised by the Appellant to produce the disputed works. On that basis, the learned Judge found that the Respondent infringed the rights of the Appellant, who he found to be the copyright owner of those works. The J7 learned Judge accordingly ordered that the Deputy Registrar assess damages based on what the Appellant would have gained if this action were not an infringement, that is to say, if the disputed production was done by him . 3.5 In relation to relief 2.1 (iii) concerning the award of special and/or exemplary damages, the learned Judge noted that, having already awarded the Appellant damages for the infringement complained of, that award was, in his view, sufficient to restore the Appellant to the position he would have been in had the infringement not occurred. Accordingly, the learned Judge dismissed the claim for special and/or exemplary damages. 3.6 Concerning ground 2.1 (iv), the learned Judge noted that damages had already been awarded for the infringement, and the matter had been referred to the Deputy Registrar to assess the market value of the loss. On that basis, the claim was dismissed. 3.7 With respect to the claim in 2.1 (v), the learned Judge found no merit in the arguments of the Appellant and dismissed this claim accordingly. The learned Judge further ordered interest on the sum to be assessed by the Deputy Registrar at the short-term bank deposit rate from the date the matter was filed in Court. Costs were awarded to the Appellant. J8 4.0 THE FIRST APPEAL 4.1 THE APPELLANT'S APPEAL FILED ON gm JUNE 2023 4.1.1 Dissatisfied with the outcome in the lower Court, the Appellant filed its Notice and Memorandum of Appeal, on 9th June 2023, fronting five (5) grounds of appeal, namely: i. That the learned High Court Judge erred in fact when he did not adequately address his mind to the nature and format of the materials to be returned and as such misdirected himself in/aw when he declined to grant an order for the delivery up of the Appellants photographs in digital format in the face of clear and undisputed evidence on record that the Respondent was in possession of the disc containing the photographs in contention before the court and consequently leaving the Appellants copyrighted work unprotected and susceptible to further infringement contrary to the legal protection afforded to the Appellant under the law .. ii. That the learned High Court erred in law and fact by not granting an order for special and/ or exemplary damages despite making a finding that the Respondent did not halt or abandon the course of their infringement but instead continued with the infringement after the same was brought to their attention. iii. That the learned High Court erred at law by treating the Appellants claim for conversion as alternative to his claim under the head of infringement and consequently refusing to grant damages for J9 conversion on the ground that his order for damages for the infringement suffices to cover the claim for conversion as an alternative notwithstanding his own clear finding of fact that there was conversion. iv. That the learned High Court Judge erred at law by treating the Appellants claim for passing off as alternative to his claim under the head of infringement and consequently refusing to grant damages for passing off on the ground that his order for damages for the infringement suffices to cover the claim for passing off as an alternative. v. That the learned High Court Judge erred and misdirected himself at law by treating the remedies sought as alternative to one another instead of making a finding on each one distinctly and awarding the appropriate damages for each head appropriately. 4.2 THE SECOND APPEAL FILED ON 26TH JUNE 2023 4.2.1 Equally disenchanted with the outcome in the lower Court, the Respondent (citing itself as the Appellant) filed its Notice and Memorandum of Appeal, on 26t h June 2023, fronting three (3) grounds of appeal, namely: i. The Court below erred in law and in fact when it held that the Respondent is the copyright owner of the images taken by the Respondent contrary to the provisions of the Copyright and Performance Rights Act, Chapter 406 of the Laws of Zambia, as the said images were taken by the Respondent on the commission of the Appellant; ii. The Court below erred in law and fact when it held that the Appellant was wrong in reproducing the images taken by the Respondent without JlO the Respondent's consent, despite having found that the Appellant had lawfully acquired the said images; and iii. The Court below erred in law and fact when it awarded the Respondent damages for copyright infringement despite acknowledging that the Appellant had lawfully acquired the images. 5.0 ORDER OF CONSOLIDATION OF 18TH AUGUST 2023 5.1 We have narrated at paragraph 1 above, the sequence of events that led to the Order of Consolidation and note with regret that the Parties continued to file process as though each were the Appellant respectively. It is trite that both Parties cannot be Appellants in the same appeal, and as directed at the hearing, we shall treat Ian Murphy as the Appellant, whose appeal was lodged earlier in time and treat Zambia Tourism Agency as the Respondent to this appeal and consider its grounds of appeal as a cross appeal. This in essence ought to have been the significance of the Order of Consolidation. 5.2 Accordingly, we shall refer to the process filed by the Parties as noted above. 6.0 APPELLANT'S HEADS OF ARGUMENT IN SUPPORT OF APPEAL FILED ON grH JUNE 2023 6.1 We have duly considered and appreciated the Appellanfs Heads of Argument filed on 15t h September 2023. 6.2 With respect to ground 1, the gist of the appeal is that the lower Courfs misdirection was in its refusal to grant an order for the delivery up of the Jll Appellant's copyrighted photographs in digital format. It was submitted that this decision leaves the Appellant's copyrighted work vulnerable to further infringement, contravening the legal protection afforded under the law. 6.3 The Appellant placed reliance on section 26 of the Copyright and Performance Rights Act 1 which stipulates as follows: "Where a person: a) Has an infringing copy of a work in his possession, custody or control in the course of a trade or business; or b) Has in his possession custody, or control an article specifically designed or adapted for making copies of a particular copyright work; the court may, on the application of the owner of the copyright in the work, order that the infringing copy or the article be forfeited and delivered up to the owner of the copyright. 11 6.4 The Appellant submitted that the photographs in question were intended solely for use in the production of Calendars and not for reproduction in other works, such as advertisements on billboards. 6.5 Concerning ground 2 on the issue of special or exemplary damages, it is the Appellant's submission that the lower Court's dismissal of the claim for exemplary damages fails to address the Respondent's willful and contumelious disregard for the Appellant's rights. The Appellant argues that the Respondent's actions displayed an outrageous defiance of the Appellant's copyright rights. J12 6.6 Concerning grounds 3, 4 and 5, the Appellant submitted that it was a misconception for the lower Court to deny and dismiss the claims for damages for conversion and passing off, despite making a finding that there was indeed conversion and passing off in the matter on the ground that the Court had already granted the Appellant damages for infringement, thus the same being sufficient and rendering the rest of the awards unattainable. 7.0 RESPONDENT'S HEADS OF ARGUMENT 7.1 We have duly considered and appreciated the Respondent's Heads of Argument filed on 23 rd October 2023 which are two-fold, in opposition to the Appellant's appeal and in support of its three grounds of appeal (now cross appeal) and will be considered accordingly. 7.2 In responding to ground 1 of the Appellant's appeal, it is the Respondent's submission that the lower Court was on firm ground when it refused to order delivery up of copies of the images, digital and/or otherwise, in the Respondent's possession, power, custody or control. The Respondent submitted this on the basis of the lower Court's decision at page Jl0 in which it stated that the Respondent had lawfully acquired the materials in its possession and subsequently refused to order delivery up of any materials. 7.3 In response to ground 2, it is the Respondent's submission that the lower Court was on firm ground when it refused to award special and/or exemplary damages. The Appellant referred to the Supreme Court case of Kapwepwe v Zambia Publishing Co. Ltd 1 which stated as follows : J13 "In Zambia exemplary damages may be awarded in any case where the defendant has acted in contumelious disregard of the plaintiff's rights. N 7.4 The Respondent argued that in order to justify an award of exemplary damages, it must be shown and proven that there was wanton behaviour or related conduct that warrants punishment by an award of exemplary damages. It was submitted that there are no circumstances in this case that warrant the grant of exemplary damages and further submitted that the Appellant had no reason to believe the Appellant owned copyright in the images. It was argued that at the time that the Respondent commissioned the Appellant for the works, its belief was that it would own and did in fact own copyright in the works. As such, the Respondent submits that the lower Court cannot be faulted for having refused to award exemplary damages, having found that there was no conduct warranting the award of exemplary damages. 7.5 Concerning grounds 3, 4 and 5, it is the Respondenf s submission that the lower Court was on firm ground when it refused to award damages for conversion and passing off. It was argued that the Court may only award damages for conversion and passing off where they do not overlap with any damages for copyright infringement. Additionally, it was argued that conversion and passing off were not appropriate remedies in the circumstances. Placing reliance on the case of Banks v EMI Songs Limited (formerly CBS Songs Limited) 2 , in which it held that it would not be J14 appropriate to also award damages for conversion where the defendants reasonably believed that they were not infringers. 8.0 THE RESPONDENT'S HEADS OF ARGUMENT IN SUPPORT OF ITS CROSS APPEAL FILED ON 26TH JUNE 2023 8.1 We have equally considered and appreciated the Respondent's Heads of Argument in support of its cross appeal filed on 23 rd October 2023. 8.2 The gist of the Respondent's argument in ground 1 is that at the outset of its judgment, the lower Court fell in error in already determining that the Appellant was the copyright owner of the images and that the Respondent was aware of it. 8.3 It is the Respondent's submission that the images were taken and used under the auspices of commissioned work. It was further argued that the lower Court failed to recognize the relationship between the Appellant and the Respondent at the heart of the dispute, namely, that the images having been taken under the auspices of commissioned work, meant that the copyright in the images vests and subsists in the Respondent. 8.4 The Respondent contends that it is and has always been entitled to equitable ownership of the photographs in question and that the lower Court fell into grave error by failing to recognize this. 8.5 In support of ground 2, the Respondent submitted that the lower Court correctly stated that the Respondent lawfully acquired the images but fell into grave error when it held that the Respondent was wrong in reproducing the images taken by the Appellant. It is the argument that copyright allows JlS the owner or a party that has lawfully acquired the right to the work, to decide how the work can be used . It was further argued that the Respondent, having acquired the right to use the images is and was entitled to reproduce the images and adapt them for its use for promotion of tourism in Zambia. 8.6 It is the Respondent's submission that at the point when the Respondent commissioned the Appellant to do the work, it impliedly bought the copyright or at the very least a licence to use the images for future works relating to the promotion of tourism in Zambia . 8. 7 In support of ground 3, the Respondent submitted that damages for copyright only arise where it is established that there was a copyright infringement. The Respondent effectively adopted the arguments submitted under grounds 1 and 2 and argued that the award for copyright infringement could not be sustained. 8.8 Additionally, the Respondent referred to section 25 (4) of the Act1 which provides: "(4) In an action under this section, the plaintiff shall not be entitled to damages if the defendant shows that he reasonably believed that no copyright subsisted in the work. 11 8.9 It was submitted that the Respondent had no reason to believe that the Appellant had copyright in the images or work. It was led to believe that the images were exclusively for its use as monetary commission was paid to the Appellant for the photos taken and selected and calendars produced . The J16 Respondent had no reason to believe that there was any limitation on the use of the images. 9.0 THE APPELLANT'S RESPONSE 9.1 We have duly considered and appreciated the Appellant's Response filed on 6th November 2023. 9.2 It is the Appellant's response to ground 1 that the lower Court' s finding that the Appellant is the copyright owner of the disputed works was as a result of careful consideration of all the evidence presented. 9.3 The Appellant further canvassed the argument that the photographs in dispute were solely taken by the Appellant at his own commission and that there is no instance where the Appellant was commissioned by the Respondent to take the photographs in question. 9.4 The Appellant submitted that the assertion that the images in dispute were taken because the Respondent commissioned the Appellant is incorrect. The Appellant argued that despite the Respondent's claim of engaging the Appellant in 2011 for its 2012 calendar, the pictures were taken before the purported engagement with the Respondent and argued that they were not the subject of commissioned artwork. 9.5 In response to ground 2, the Appellant submitted that the lower Court was on firm ground when it held that the Respondent was wrong in reproducing the images taken by the Appellant without the Appellant's consent. It is the J17 argument of the Appellant that the unauthorized production of the Appellant's photographs constituted a clear case of copyright infringement. 9.6 In addressing ground 3, the Appellant contended that the lower Court was on firm ground in awarding the Appellant damages for copyright infringement. The Appellant argued that, given the established infringement, the award of damages was justified. It was further submitted that the Respondent was made aware of the infringement through proactive measures undertaken by the Appellant, including the delivery of a copy of the Copyright and Performance Rights Act 1 . Despite these efforts, the Respondent failed to take any steps to rectify the matter, demonstrating a clear disregard for the Appellant's copyright. 10.0 THE RESPONDENT'S REPLY TO ITS CROSS APPEAL 10.1 We have duly considered and appreciated the Respondent's heads of argument in response to its cross appeal filed on 21st December 2023. 10.2 Concerning ground 1, the Respondent submitted that the gist of the Appellant's argument is that the Respondent did not commission the Appellant to take pictures in question and cannot therefore claim ownership of copyright in the images. The Respondent's contention is, to be able to establish whether the work falls within the scope of commissioned work, the exact nature of the agreement between the parties and work to be undertaken ought to be considered . The Respondent submitted that for all intents and purposes the work that the Appellant was commissioned to J18 perform falls under what is considered to be commissioned works under copyright law. 10.3 Concerning ground 2, the Respondent submitted that there is nothing on record that shows that the Appellant continued to be the owner of the images used on the posters and billboards and that the Respondent acknowledged this . It is the Respondent's argument that the Respondent acknowledged that the Appellant took the images, the Respondent gave evidence to the effect that the images were for all intents and purposes presented to the Respondent for its sole use without any limitations attached as noted at page 122 of the Record. It is the Respondent's argument that given the nature of the agreement and the circumstances of this case, it cannot be said that there was any copyright infringement committed by the Respondent. 10.4 Concerning ground 3, the Respondent maintains its argument that the lower Court erred when it awarded damages without considering the circumstances of the case in line with section 25 (4) of the Copyright and Performance Rights Act 1 which restricts the awarding of damages. 11.0 THE HEARING 11.1 At the hearing, and as has been noted from the introductory part of this Judgment, we gave guidance on how the appeal was to be argued and treated as an appeal and cross appeal respectively. In making oral submissions in support of the appeal, Counsel Mushokabanji urged the Court to find that the lower Court having awarded damages for copyright J19 infringement, fell into grave error by not making pronouncements on the specific reliefs claimed by the Appellant. 11.2 His bone of contention with the Judgment of the lower Court was based on the other claims which were not addressed by the Court, including claims for delivery up of the Appellant's images, special and or exemplary damages, damages for conversion and passing off, all of which claims were cumulative in nature and that the grant of damages for infringement ought not to be a bar to the other claims. 11.3 Counsel Chibundi referred the Court to page 23 (J13) of the Record, to canvass the argument that the Appellant could only pursue limited damages before the Registrar, on account of having been denied damages for conversion, amongst other claims, more especially that infringement had been proved. 11.4 Counsel Mutale for the Respondent placed reliance on its process before the Court and referred to above in response to the appeal and in support of its cross appeal. It was his submission that the lower Court reasoned and justified its refusal to award any other claims. 11.5 In advancing his arguments with respect to the cross appeal, Counsel submitted that the Appellant's images clearly fell within the realms of commissioned works as provided by section 10 of the Act1. He urged the Court to note that there being no scope of works agreement and invited us to look at the proceedings and cross examination of the witness to uphold the cross appeal. J20 11.6 In opposing the cross appeal, Counsel Chibundi invited the Court to find that the images, the subject of the appeal, belonged to the Appellant and hence liability for copyright infringement was properly found against the Respondent. He relied on the case of Wilson Masauso Zulu v. Avondale Housing Project Limited 3 to canvass the argument that the Respondent had not discharged the burden of proof and urged us to dismiss the cross appeal. 12.0 ANALYSIS AND DECISION OF THE COURT 12.1 As earlier noted, the respective grounds of appeal and arguments of the Parties have been extensively considered as has been the Record of proceedings for reasons which will become clear. 12.2 The eight (8) grounds of appeal and cross appeal combined, challenge the findings of fact and of law made by the lower Court, mainly the determination of whether the Respondent infringed copyright rights of the Appellant. 12.3 We are alive to the fact that this appeal rests purely on liability under The Copyright and Performance Rights Act 1 which has been extensively cited by the Parties and the lower Court. 12.4 We are alive to the settled and limited circumstances under which we may set aside findings of fact made by a lower Court and authorities abound in the jurisdiction. 12.5 We would simply be splitting hairs if we considered each ground of appeal and cross appeal, as they all rest on the Court' s determination of whether J21 copyright infringement had in fact been proved. To employ Counsel Chibundi's words, 'what applies to the goose must apply to the gander', we ask ourselves if the Appellant has discharged the burden of proof incumbent upon him. 12.6 Owing to the nature of the conflicting evidence in the matter, and there being no substantive agreement between the Parties that was brought to Court, we are of the considered view that we should scrutinize the full evidence available in the lower Court, make findings to establish the veracity of the Appellant's claims of infringement against the Respondent and thereby deal with all the grounds of appeal and cross appeal in one single determination. 12. 7 This attempt on the part of the Court, though well intentioned, was frustrated and curtailed as noted below. 12.8 The Appellant's statement of claim is not on record, the Court was left with no choice but to decipher the Appellant's evidence from witness statements and the Respondent's amended defence, and without the benefit of his pleadings in full. 12.9 The Appellant in his witness statement, (before the lower Court), seen at pages 105 to 110 makes reference to several meetings that took place between Zambia Reprographic Rights Society (ZARRSO) and the Respondent, making representations on his behalf, for alleged copyright infringement. The Appellant refers at paragraph 16 of his witness statement at page 109, that Minutes of the said meetings were seen at pages 9 to 41 of his Bundle of Documents. (Namely the expunged documents). J22 12.10 Unfortunately, a thorough scrutiny of the Record of Appeal, prepared by the Appellant, does not produce the full Bundle of Documents. Page 96 is the cover page of the Bundle of Documents and the Index lists pages in excess of 97 pages, while the actual selected documents, from the Bundle are only 6 pages (pages 99 to 104 of the Record). 12.11 However, and escalating our scrutiny of the Record, we have noted from the transcript of proceedings of 5th October 2022, at the start of the hearing, on page 194 that there appears to have been a Ruling delivered by the lower Court as a consequence of which pages 6 to 97 of the Plaintiff's Bundle of Documents were expunged for being part of a series of without prejudice communication and as a consequence of which all paragraphs in the Appellant's witness statement which refer to the expunged documents also stand expunged. Again, as is typical, the said Ruling of the lower Court is not on Record, save to state that we now understand why the Appellant's (Plaintiff's) Bundle of Documents is only in extent of 5 pages. 12.12 We also note that the said Ruling of the lower Court prompted an appeal to this Court which equally rendered a Ruling, both of which Rulings, not being before us on the Record, leads us to conclude that the Ruling of the lower Court expunging the stated documents from the Appellant's Bundle of Documents, must, as a necessary consequence, have been upheld. 12.13 The Respondent's {defendant's) first witness statement of Stein Liyanda is seen at pages 116 to 120 which statement continues the trajectory of the "he said-she said", style of evidence maintaining that the Appellant had been paid for the use of his images in the form of posters, billboards at the Airport J23 and posters for the placement at the offices of the Ministry of Tourism and suggesting a long and ongoing relationship from in or about 2009. 12.14 What is clear is that in the year 2011, the Appellant was engaged to produce 3,000 copies of the calendar for the Respondent for the year 2012 and for which the Appellant was paid the sum of K109,S00 (rebased) and that the Appellant did not place any restrictions on the Respondent for the use of his images. Paragraph 8 of the witness statement makes reference to a letter dated 8t h November 2011 and an invoice dated 8t h December 2011 and refers to pages 1 & 2 of the Defendant's Bundle of Documents. 12.15 The said witness statement makes reference to other correspondence and payments made to the Appellant as appearing on pages 3 to 9 of the Bundle of Documents. Needless to say, the said Bundle of Documents is not contained in the Record of Appeal. 12.16 The same witness also discredits the Minutes of the Meetings held between ZARRSO and the Respondent and claims these were not signed, as they were not a true reflection of the discussions held. We refer to paragraph 12.9 above. 12.17 The second witness statement for the Respondent, Evans Muhanga confirmed the gist of the relationship between the Parties and maintained that the Appellant gave his images in the form of soft-copy on a DVD {Digital Video Disc) to the Third Party printer (which third party was a party in the lower Court), and that these were given without any restriction as to their use. See paragraphs 3 & 4 of the witness statement at page 122. This J24 obviously contradicts the witness statement of the Appellant as seen at paragraphs 3 to 5 of his witness statement at page 106. 12.18 We have continued on our painstaking journey and scrutinised the third party' s skeleton arguments, who as we have already noted, is not before this Court, simply in an effort to establish the veracity of the competing claims in this matter. The only thing that appears conclusively, is that the Appellant' s images were shared on a DVD and the third party was instructed to print calendars for the year 2012 and billboards and posters for use at the Lusaka International Airport and other places. 12.19 This effort has equally been frustrated for lack of the Third party's Bundle of Documents on the Record of Appeal which make reference to the use of the DVD containing the Appellant's images and which refers to the instructions received by way of purchase orders and to tax invoices and receipts of payments made to the third party by the Respondent. 12.20 Ultimately, we are of the considered opinion that the Appellant has not discharged the burden of proof incumbent upon him to warrant any finding in his favour . The simple fact is that there is no material before the Court, nor the lower Court to arrive at the finding of infringement. We must in the circumstances set aside that finding of infringement as it simply has not been proved. A close look at the record of proceedings especially the cross examination of the Appellant noted from pages 196 to 205 tells its own story. 12.21 Regrettable as it may be, and noble as the work of an artist of the standing and repute of the Appellant, the proverbial expression Murphys law comes to mind. The Court does not gaze into a crystal ball for answers to disputes J25 between the Parties, if the Party alleging cannot substantiate his own claims for all the weaknesses in the record and on the evidence presented before the Court. 13.0 CONCLUSION 13.1 The appeal is dismissed on all five grounds, and the cross appeal is upheld. The award of damages for alleged copyright infringement is set aside. 13.2 Whilst we are alive to the general principle on the issue that costs follow the event, we are of the considered view that in the circumstances of this particular matter, the nature of the transactions and the issues in contention, this is a matter in which we order that Parties bear their own costs in this Court and in the lower Court. I _ M. J. SIAVWAPA JUDGE PRESIDENT ~ F. M. CHISHIMBA COURT OF APPEAL JUDGE A. N. PATEL S. C. COURT OF APPEAL JUDGE J26