BY SAM ALFAN.
Equity banks decision to have a minor arrested for demanding his ‘Wing to fly’ song has been condemned by the court.
Justice Wifrida Okwany also ordered the bank to pay musician Eric Obiero Nyadida Sh5.2 million for breach of his intellectual property rights.
In her decision, Justice Okwany found that considering the relationship, the understanding and the correspondence that Equity Bank and the DPP had with the musician who was at the time a minor, the action, by Equity Bank and Equity Group Foundation to detain him for hours on end and later hand him over to the police was extreme and uncalled-for.
Justice Okwany said the Bank conduct lends credence to the Eric’s claim that they took advantage of his age and status to intimidate and harass him in a bid to discourage him from pursuing his intellectual rights over his music.
“I find it quite ironical, that the respondents, who through their program ‘Wings to Fly’, promote the education of bright needy students could choose to treat the petitioner, who was himself a student, in such a cruel manner. In my considered view, the respondents could have employed other means to amicably settle the differences that they may have had with the petitioner over the music contract instead of involving the police in the matter,” roared the judge.
The Judge further added that she listened to the Eric’s testimony and observed his demeanour, he struck her as an intelligent and truthful young person whose evidence was not impeached, even of stringent cross examination by the respondent’s (Equity Bank and Equity Group Foundation) counsel, Mrs. Okimaru.
The court also ordered the bank and Director of Public Prosecution Noordin Haji to pay him Sh.250,000 for malicious prosecution.
The judge further barred Equity Bank and Equity Group Foundation from using the petitioner’s work of music, ‘Wings to Fly’.
“I am satisfied that the petitioner proved his claim, on malicious prosecution against all the respondents to the required standards,” said the judge.
The judge found that Equity Bank and Equity Group Foundation used and have been using the music that he created without his consent and without paying him for it thus breaching his intellectual property rights.
The judge noted that it was not disputed that the parties had interacted and reached an understanding when the Bank requested Eric to write a proposal on the use of his song to promote Banks’ scholarship program.
” It is against this backdrop that the petitioner went to the respondents’ offices, upon learning that his song was being used by the respondents, to enquire about his payments when he was arrested and detained by the respondents’ security officers before being handed over to the police who then charged him in court with the offence of forgery,” said the Judge.
Eric was eventually acquitted of the criminal charges.
“I find it quite unfortunate that the respondents, who should have been in the forefront in promoting young talents went ahead to dim the petitioner’s hopes by arresting him when all he did was pursue the rights to his music,” added the Judge.
The Judge said it was clear that the music that the bank alleges it purchased from Apple Company is similar to the music that Eric presented to the Bank Senior Communication manager Edward Muchai. It is also apparent that there was a contradiction in the testimony of the respondent’s witness as while on one hand he stated that he listened to Eric’s music for the first time in 2013 when Eric presented it to him in his office, on cross examination, he stated that he heard the tune for the first time in 2019.
Judge Okwany said furthermore, even though Muchai testified that the bank engaged an expert to distinguish the difference between the ‘Reunion’ song from the petitioner’s ‘Wings to Fly’ song and to determine when the songs were released and by which artist, no such expert was presented in court to shed light on the matter.
The Bank’s witness however referred to the report made by one Phillip Tuju who alleged that the ‘Reunion’ song was published in February 2008.
“My finding is that the expert’s report presented by Edward Muchai falls short of the probative value and test expected of an expert witness’s report as it was not presented by the maker whose evidence would have been subjected to cross examination to confirm its veracity,” said the Judge.
She further added that court had a chance to listen to Eric’s music ‘Wings to Fly’ when the same was played in court during the hearing and noted that there was a striking similarity between the said song and the one used by the bank in advertising its program, also dubbed ‘Wings to Fly’.
“My finding is that it cannot be a coincident that out of almost 5000 tunes/songs that the 1st and 2nd respondents alleged that they purchased from Apple, they ended up choosing a song that has an uncanny similarity to the song that the petitioner presented to DW1 during their meeting held in 2013,” said the judge.
