BY SAM ALFAN.
A musician pursuing Sh5.2 million from Equity Bank for breach of his intellectual property rights has written to Court of Appeal President Daniel Musinga over the delayed determination of appeal lodged by the lender challenging the award.
In the letter to Justice Musinga, Eric Obiero Nyadida pointed out that the matter has been in court for the last 11 years in different court, a move that has denied him justice.
Through his lawyer Dr John Khaminwa, Nyadinda said since Equity Bank obtained orders suspending Justice Wifrida Okwany judgment in October 2022, the matter has not progressed.
“In the instant appeal, it is clearly evident that the appellants (Equity Bank) did not file the appeal with the objective of seeking justice but was rather meant to secure stay orders and delay the matter as they continue to benefit from the same and breach my IP without any consequences thereof. Unfortunately for them, the Judiciary has teeth, It can bite, let it not let Equity Bank get away with this nefarious conduct any longer,” says the musician in the letter.
Nyadida is requesting the appellate court to grant the matter a priority date, to bring an end to the matter.
“It is my humble prayer that the request for a priority hearing will be granted as it is made in the interest of justice and equity and that the matter will be certified extremely urgent and admitted for hearing on a priority basis,” Nyadida told the Appellate court president Musinga in the letter.
Equity Bank and Equity Bank Group appealed against the award arguing that the judge erred by making pronunciations and taking into consideration issues not pleaded in the petition.
“The Judge of the High Court erred in law by misapprehending the law governing malicious prosecution and ignoring or misapprehending the provisions of the Copyright Act and therefore misleading herself on the law regarding copyright,” claims Equity Bank.
The lender said Justice Okwany disregarded the fact of forgery of the agreement produced in both the criminal proceedings and in the petition by the musician and fact by assuming the existence of facts not proved before her, thus drawing a conclusion of an alleged “music contract”.
It is the Equity arguments that the musician prosecution of the criminal case against him was carried out by the Director of Public Prosecution, Consequently the musician he should have led evidence to prove malice on the part of the prosecution but he did not.
“The fact that the he was acquitted in the said criminal proceedings does not mean that there was no reasonable and probable cause to arrest, charge and prosecute the musician. Furthermore, there was no evidence whatsoever to prove that musician suffered any indignity humiliation or injury to his feelings.
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.
