CHARLES M

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT DAR ES SALAAM. CIVIL CASE NO. 2271 OF 2024 CHARLES MOSES LINTU..............................................................PLAINTIFF VERSUS VODACOM TANZANIA PUBLIC LIMITED COMPANY...................DEFENDANT JUDGMENT Date of last order: 21/03/2025 Date of judgment: 28/03/2025 A.A. MBAGWA, J. The dispute in this matter arises from the copyright infringement allegedly committed by the defendant. The plaintiff Charles M. Lintu contends that the defendant infringed his copyright by using the contents of his literary work namely, ‘Jipimie Plus’ without his consent. He thus prays for judgment and decree against the defendant with the following reliefs: a) An order for a declaration that the defendant infringed the copyright of the plaintiff. b) The defendant be ordered to pay a total sum of Tanzania shilling One billion (TZS 1,000,000,000/=) being the specific damages for 1 copyright infringement of the plaintiff's protected literary work. c) Payment of TZS 700,000,000/= as general damages or as may be assessed by the court. d) Commercial interests of 18% per annum on (b) from the date of filing this suit until judgment. e) Court's interest of 12% per annum from the date of judgment until full payment; f) Costs of this suit be provided in favor of the plaintiff in any event; and g) Any other relief(s) this court deems fit and just. The background to this suit as gathered from the pleadings and evidence may briefly be recounted as follows; In 2018 the plaintiff developed a formula for an airtime bundle known as ‘Jipimie Plus.’ The idea was expressed in a document (exhibit P1). The bundle aimed to enable the customer to use the package of his choice according to his needs and means. The introductory part of the work (exhibit P1) reads: ‘Hiki ni kifurushi kipya kabisa cha simu za mkononi n ani aina ya kifurushi kitakachomwezesha mtumiaji was simu ya mkononi kuchagua na kujikadiria kiasi na 2 viwango anavyotaka katika makundi ya dakika, sms, mb(data) na thamani ya kifurushi katika muda mfano siku saba, masaa ishirini nan ne (masaa 24). Namna inavyofanya kazi Mtumiaji wa simu ya mkononi atatakiwa kujiunga katika JP kwa namba hii 1. *148* idadi ya msg*idadi ya md data* idadi ya dakika*muda# 2. Kikokotozi cha kifurushi cha jipime kitakupa majibu ya thamani ya JP ulio chagua. Mfano *148*500*100*100*7#ok’ Thus, having documented his idea, the plaintiff registered his work with the Copyright Society of Tanzania (COSOTA) and was issued a Copyright Clearance Certificate (exhibit P9) dated 19th November 2018. On the 12th day of June 2019, the plaintiff submitted his literary work namely, ‘JIPIMIE PLUS’ to the defendant's office through the marketing or value-added services department office. It was alleged that the defendant through her officer namely, Stella received the plaintiff's literary work and promised him that the defendant would invite the plaintiff to a 3 meeting for negotiations and deliberations on using the plaintiff's work. The plaintiff stayed for a while without any feedback. As such, on the 1st day of July 2020, the plaintiff submitted a reminder letter (exhibit P2) to the defendant. Nevertheless, the defendant was not forthcoming. To the plaintiff’s dismay, he came to see an advertisement from the defendant’s YouTube channel and Habari Leo Newspaper dated 27th August 2020 launching a new service popularly known as “JIMIXIE BANDO" which was similar in material particulars to the plaintiff's work. As the plaintiff's work ‘JIPIMIE PLUS’ was registered and cleared for copyright by the Copyright Society of Tanzania (COSOTA), he decided to lodge his complaint against the defendant at COSOTA. However, the efforts to settle the matter amicably proved futile. Consequently, the plaintiff, through his lawyer, sent demand notices (exhibits P6 and P7) to the defendant expressing his intention to institute a suit but the defendant continually declined to compensate the plaintiff. As a consequence, the plaintiff resolved to institute the present suit claiming the reliefs from the defendant as indicated hereinabove. In contrast, the defendant filed a written statement of defence vehemently 4 disputing the plaintiff’s claims. She therefore prayed for, among other things, the dismissal of the suit. The defendant denied to have received any literary work on the mentioned date, that is, 12th June 2019 from the plaintiff through its official means nor did it acknowledge using the contents of the plaintiff’s product namely, JIPIMIE PLUS. The defendant stated that the product known as JIMIXIE BANDO was developed by the defendant through its internal development process and approved by the Tanzania Communications Regulatory Authority (“TCRA”). She further averred that the plaintiff did not invent the product JIMIXIE BANDO as claimed in that the concept of customers building or mixing their own bundle was not novel. The defendant clarified that the formula was already in use in other jurisdictions such as Vodafone Australia, Jazz Pakistan, and Tello even before the date the plaintiff allegedly submitted his work to the defendant. In fine, the defendant prayed for the suit to be dismissed with costs stating that there was no valid claim whatsoever against her. During the final pre-trial conference, two issues were framed for determination of the suit as follows; 5 1. Whether the defendant infringed the plaintiff’s intellectual rights. 2. To what reliefs are parties entitled? During the hearing, the plaintiff was represented by Mr. Emmanuel Hando, the learned advocate whilst the defendant had the services of Mr. Luka Elingaya, Mr. Alex Mianga, and Mr. Peter Clavery, all learned advocates. In a bid to establish his claims, the plaintiff was the sole witness (PW1) whose witness statement was adopted and admitted to form part of his testimony. In addition, the plaintiff tendered nine (9) documentary exhibits namely; a document titled ‘Utambulisho wa kifurushi kiitwacho jipimie plus dated 12/06/2019 (exhibit P1), a letter addressed to the Vodacom Tanzania Limited dated 29/06/2020 (exhibit P2), Habari Leo Newspaper dated 27/08/2020 page 17 (exhibit P3), a letter addressed to COSOTA dated 28/08/2020 (exhibit P4), a letter from COSOTA to Vodacom dated 07/09/2020 (exhibit P5), demand notice to Managing Director of Vodacom dated 28/12/2020 (exhibit P6), a letter from Vodacom to Ngalaba dated 16/01/2021 (exhibit P7), a dispatch book used by the plaintiff to submit his products (literary works) to Vodacom 6 (exhibit P8) and Copyrights Clearance Certificate dated 19/11/2019 issued by COSOTA (exhibit P9). On the other hand, the defendant paraded three witnesses namely; Joseph Placid Njuu (DW1), Raymond Rutagandara Muhondezi (DW2), and Stella Msangula (DW3) whose witness statements were adopted and admitted to form part of their testimony. In addition, the defendant tendered sixteen (16) documentary exhibits namely; email printout ‘brainstorming and review session-future’ dated 20/01/2020 (exhibit D1), MTPC-0163-0403-Build your own plan dated 28/03/2020 (exhibit D2), a letter from Vodacom to TCRA titled ‘Introduction of the Buffet Bundle’ dated 22/04/2020 (exhibit D3), a letter from TCRA to Vodacom ‘Re: Introduction of Buffet Bundle’ dated 28/07/2020 (exhibit D4), email printout ‘ BYOP Pricing Model- Validation’ dated 29/07/2020 (exhibit D5), Power Point Presentation titled ‘BYOB/ the product dated June 2020 (exhibit D6), email printout titled ‘Jimixie Product Deck- Exco dated 03/08/2020 (exhibit D7), a bundle of printouts from websites showing different jurisdictions that were using similar products (exhibit D8), email printouts titled ‘VCTZ Build Your Plan Phase II- Update 22 July 2020 (exhibit D9), BYOB- The product dated August 2020 (exhibit D10), 7 Hackathon Terms and Conditions 2019 (exhibit D11), Vodacom Internal Communication email introducing Hackathon dated 14th May 2019 (exhibit D12), An Email correspondence dated 4th June 2020 in respect of Hackathon 2019, Submission by Raymond Muhondezi (exhibit D13), Hackathon 2019 Submission by Raymond Muhondezi (exhibit D14), Hackathon 2019 Submission Ideas Register (exhibit D15) and Two registers of received official documents from Vodacom (exhibit D16 collectively). In essence, the sole plaintiff’s witness both in his witness statement and oral testimony recapitulated the contentions in the plaint. While under cross-examination, PW1 stated that he had previously submitted to the defendant other literary work called ‘Pamoja Bundle’ as seen in exhibit P8 which was later named ‘collabo bando’. However, the plaintiff stated that the defendant never paid him for the work. PW1 conceded that he submitted his literary work to the defendant without any agreement or invitation because he was looking forward to doing business with the defendant in the future. Further, he admitted that the defendant’s reception officer known as Stella told him verbally that she would submit the plaintiff’s literary work (exhibit P1) to the value-service section. PW1 8 conceded that USSD Codes like *148*500*100*100*7#OK appearing in exhibit P1 are used by all telecommunication companies. On the adversary, Mr. Joseph (DW1), Mr. Raymond (DW2), and Ms. Stella (DW3) in their written and oral testimonies restated the averments in the defendant’s pleadings. DW1 who introduced himself as the Principal Officer of the defendant denied having officially received the plaintiff’s literary work titled ‘Jipimie Plus’ instead he stated that it was a team future that invented the idea of Jimixie bundle and submitted the idea to the Head of Department on 28/03/2020. When further cross-examined, DW1 replied that exhibit D4 was a letter from TCRA authorising the defendant to launch Jimixie Product. DW2 when cross-examined stated that the idea he invented did not have a name but it had the concept of ‘build your own bundle’ which was not similar to the contents of exhibit P1. When cross- examined, DW3 admitted that exhibit P1 was received at Vodacom because it bears the company stamp dated 12/06/2019. However, DW3 denied the signature appearing in the plaintiff’s dispatch book (exhibit P8). When further questioned by the court, DW3 stated that when a person brings the document to the defendant, they only stamp the document and that they have no register of incoming documents. DW3 9 added that exhibit D16 is for persons who collect documents from the defendant (outgoing documents). Upon conclusion of the hearing, both parties filed their respective written submissions. I am quite grateful to the learned counsel of both sides for their informative submissions on the subject. Suffice it to say that I have given deserving attention to the rival submissions in arriving at the decision. Having recounted the parties’ evidence albeit in a nutshell, it behooves me now to determine the issues framed. Starting with the 1st issue to wit, Whether the defendant infringed the plaintiff’s intellectual rights. It is the law that he who alleges must prove. See Section 110 of the Evidence Act. The plaintiff alleged that he invented the idea and documented it in exhibit P1. He registered the literary work under the name ‘Jipimie Plus’. The plaintiff produced a Copyright Clearance Certificate issued by the Copyright Society of Tanzania (exhibit P9) dated 19th November 2018 to substantiate the ownership of his literary work. It was the plaintiff’s evidence that on 12/06/2019, he submitted his literary work to the 10 defendant via a despatch book (exhibit P8) so that they could enter into a contract if the defendant found it useful. The defendant received the work and promised to meet the plaintiff shortly for negotiations. However, the plaintiff came to learn that the defendant fraudulently used the contents of his work under the disguise of ’Jimixie Bando’. The plaintiff became alert through the defendant’s advertisement in the YouTube channel and Habari Leo Newspaper dated 27th August 2020. The plaintiff’s grievance is that the defendant used and benefited from his work without his authorization. On the adversary, the defendant’s evidence denied the receipt of such literary work. However, in the testimony, DW3 conceded that the literary work (exhibit P1) was received by the defendant as it bears the company stamp dated 12/06/2019. DW3 further admitted that the alleged dispatch book (exhibit P8) contained her name although she disputed the signature appended thereto and alleged that she does not recognize the plaintiff. Whereas DW1 testified that the idea of ‘Jimixie bando’ was not novel on the ground that it already existed as it was being used by the defendant in other jurisdictions like Australia, DW2 testified to the effect that he was 11 the one who invented the idea in the name of ’Jimixie bando’. It was defence evidence that the idea of ’Jimixie Bando’ after being invented by the defendant’s organized teams, the same was presented to ‘’TCRA’’ for authorization and later on launched (exhibit D3 and D4). I find the defence version quite contradictory and an afterthought. Whereas DW1 told the Court that the formula was already in use by the defendant in other jurisdictions, DW2 claims that he was the one who invented the idea. This explains that the two were not telling the truth. Further, DW3 admitted the defendant’s official stamp appearing on the plaintiff’s work (exhibit P1) thereby implying that the plaintiff’s work was submitted to and received by the defendant. Under the circumstances, one would expect a reputable company like the defendant to promptly act on the plaintiff’s proposal by informing him that the formula was already existing and being used. However, this was not done by the defendant despite the plaintiff’s follow-ups on the updates regarding his literary work. In a bid to counter the plaintiff’s evidence on the submission of his literary work to the defendant, the defendant tendered the registers (exhibit D16) to tell the Court that the plaintiff’s work was not among the documents received by the defendant. However, on being asked by the 12 Court, DW3 admitted that the registers (exhibit D16) were for outgoing documents and not incoming documents. Moreover, DW2 claimed that he invented the idea and presented it to the defendant who subsequently submitted it to the ’TCRA’ for authorization, and later on, the product was launched. A million-dollar question is, if the formula was truly already used by the defendant in other jurisdictions why did DW2 pretend to invent it and present it to the defendant who allegedly was already using it since 2016? Indeed, the cumulative evaluation of the evidence of DW1 and DW2 leads to no other inference than an afterthought. In addition, looking at the evidence of both sides, it is apparent that the defendant’s purported invention process started after the plaintiff had registered his work with COSOTA and submitted the same to the defendant. This fact augments the plaintiff’s grievance that the defendant just slightly amended the plaintiff’s work ‘JIPIMIE PLUS’ and came out with ‘JIMIXIE BANDO’. Indeed, upon assessment of the evidence as a whole, the plaintiff’s evidence weighs heavier than the defendant’s evidence. It is a trite law that in civil cases whose standard of proof is on a balance of probabilities, 13 the Court is enjoined to sustain the evidence that is more credible than the other on a particular fact. See the case of Mary Agness Mpelumbe vs Shekha Nasser Hamud, Civil Appeal No. 136 of 2021, CAT at Dar es Salaam. Guided by the authorities above, it is my unfeigned findings that the plaintiff proved he invented the literary work ‘Jipimie Plus’ and went further to register it with COSOTA as early as 19th November 2018. As such, the plaintiff was entitled to copyright protection of his work in terms of Section 5(1) and (2)(a) of the Copyright and Neighbouring Rights Act, No. 7 of 1999 hereinafter referred to as CNRA. Although the plaintiff was not legally required to register his work as a basis for his claim, the registration with COSOTA added value to the protection of his work. It is further the findings of this Court that the plaintiff submitted his literary work ‘Jipimie Plus’ to the defendant but the defendant used it in disguise as ‘Jimixie Bando’ without the owner’s consent thereby infringing the plaintiff’s intellectual rights. I therefore proceed to answer the first issue in the affirmative. Regarding the second issue to wit; To what reliefs are parties entitled? Following the deliberations on the 1st issue, it goes without saying that 14 the defendant committed a civil wrong against the plaintiff as a result the plaintiff suffered a loss due to the defendant’s conduct. The immediate issue for consideration therefore is whether the plaintiff strictly proved the claimed specific damages of TZS 1,000,000,000/=. It is a trite law that special damages must be specifically pleaded and strictly proved. See the cases of Zuberi Augustino v. Anicet Mugabe, [1992] TLR 137 and Stanbic Bank Tanzania Limited vs Abercrombie & Kent (T) Limited, Civil Appeal 21 of 2001, CAT at Dar es Salaam. The plaintiff alleged that he depends on literary works as his major source of income. He clarified that he has been trading with various telecommunication companies by selling them his literary works. However, no piece of evidence was tendered in Court to demonstrate the amount of money he has been accumulating from the alleged sales of literary works. In the event, it is my considered findings that the plaintiff failed to specifically and strictly prove the specific loss of TZS 1,000,000,000/=. The plaintiff also prayed for general damages. As the law stands, general damages are awarded at the court's discretion. Its purpose is to put the plaintiff in the same position as money can do if his rights were observed. 15 As decided above, the defendant infringed the plaintiff’s intellectual rights and benefited therefrom (exhibits P1 and P3). Moreover, it is a principle of law that where there is a wrong there is a remedy. In the case of China Henan International Co-operation Group Co. Ltd v Salvand K.A. Rwegasira, Civil Appeal No. 57 of 2011 (unreported), the Court held; ‘… it is a fundamental legal principle in the administration of justice that there is no wrong without a remedy ‘ubi jusi ibi remedium’. So, although the respondent has failed to prove the special damages he pleaded, there is no doubt in our judgment that some wrong was committed. So, he cannot be left without a remedy. We think that justice of the case demands that we give him some relief. We do so under ‘any other reliefs’ which he had prayed for his plaint.’ Borrowing a leaf from the reasoning of the Court of Appeal in the above decision and in terms of Section 38(1)(b) of the CNRA, I am equally opined that although the plaintiff failed to prove the specific damages, there is abundant evidence that he was wronged by the defendant, the 16 fact which entitles him to a remedy. It is obvious that the unauthorized use of the plaintiff’s artistic works denied him financial gain. Thus, considering the economic inconveniences caused by the defendant’s acts, I am of the settled view that the award of TZS 50,000,000/- (Tanzania shillings fifty million) as general damages would suffice, under the circumstances, to restore the plaintiff to the position he would have been had his rights not been infringed. Since the suit has succeeded, the plaintiff is also awarded costs for prosecuting the suit. In the circumstances, I hereby enter judgment and decree against the defendant with the following consequential orders; 1. The defendant is hereby declared to have infringed the Intellectual rights of the Plaintiff. 2. The defendant is hereby ordered to pay the plaintiff TZS 50,000,000/= being general damages. 3. The defendant is hereby ordered to pay interest on the decretal sum under (2) above at the rate of 7% from the date of judgment to the date of final satisfaction. 4. Costs of the suit be borne by the defendant. It is so ordered. 17 The right of appeal is explained. Dated and delivered at Dar es Salaam this 28th day of March 2025. A.A Mbagwa JUDGE 28/03/2025 Court: The judgment has been delivered on this 28th day of March 2025 in the presence of Ms. Naomi Mzee, learned advocate for the defendant who was also holding brief for Mr. Emmanuel Hando, learned advocate for the plaintiff and the plaintiff in person. A.A Mbagwa JUDGE 28/03/2025 18