20151008 TZHC Arusha

IN THE HIGH COURT OF TANZANIA AT ARUSHA DC. CIVIL APPEAL NO. 25 OF 2015 (Originating from Resident Magistrate Court of Arusha/ Civil Case No. 18/2013) JOSEPH RYOBA... ■ I ■ I ■■■■■■■ •••••• I •• 1111 ■ ■ ■ ••• ■ •••• ■ ■ •• ■■■ •• ■ ■ •••• I I ••••• ■ .APPELLANT VERSUS KIBO PALACE HOTEL AND RESOLT LTD ................. ,..... RESPONDENT Date of last Order: 18/09/2015 Date ofJudgment: 08/10/2015 EX-PARTE JUDGMENT MASSENGI, J The Appellant JOSEPH RYOBA instituted a case before the Resident Magistrate Court of Arusha at Arusha in Civil Case No. 18 of 2013, claiming against the defendant/respondent for Tshs. 50,000,000/= being special damages for unlawful act of the defendant/respondent to capture and publicize the picture of the plaintiff without having either oral or written consent to capture and use the plaintiff's/appellant's image for business promotion purposes. On 20 th March, 2014 the judgment was entered in favour of the respondent. Being dissatisfied by that decision, the appellant appeals before this court on the following grounds; 1. That the learned trial Magistrate erred in law and fact when considering evidence by unreliable witness. 1 2. That the trial Magistrate erred both in law and in facts in holding that the Appellant was aware and consent to the shooting exercise. 3. That the trial Magistrate erred both in law and in fact in holding that the Appellant could not prove when the image was taken to warrant the amount of Tshs. 50,000,000/=. 4. That the trial Magistrate erred both in law and in fact when failed to consider strong submission pointed by the Appellant. In this appeal the appellant was represented by Mr. Ngemela learned counsel whil~ the respondent was unrepresented. On the date fixed for hearing 14th day of September, 2015, learned counsel for the appellant prayed to proceed with the hearing ex parte as the respondent was dully served but never appeared and this court after being satisfied with records that the respondent was duly served but never appeared, ordered the hearing to proceed ex parte. The hearing was also ordered to be argued by way of written submissions and the appellant to file his submission by 21/09/2015. In arguing the appeal, learned counsel for the appellant opted to submit the grounds of appeal jointly where he contended that the appellant who testified as PW1 together with one witness who posed as PW2 testified before the trial court that the appellant's image was found in the respondent's website and the same was used for promotion purpose. The Appellant also managed to produce exhibit Pl and P2 to prove the above. He further submitted that the appellant was unaware of the image and he never consented his image to be captured and be used for promotion of the defendant's business. It was further submitted that the 2 appellant testified that he suffered both mental and specific damages and rd he demanded to be paid 1,000,000/= per month from 23 January, 2009 the date when the respondent captured and used his image for business promotion to when the case was filed which is Tshs. 50,000,000/=. He further submitted that PW2 testified that on 5th of September, 2012 while he was searching various website for his business, he was shocked to find the image of the appellant to whom he knew very well and after asking the appellant whether he knew that his image was in the respondent's website, the appellant was shocked with that information and told PW2 that he had no any knowledge that his image was in the respondent's domain and he promised to go through the respondent's website. He contended that the trial Magistrate was wrong to held that the appellant did not prove specific damage as the appellant demanded to be paid one million per month as compensation for the act of the respondent to take the image of the appellant by force and use the same for commercial purpose. The respondent benefited by using the image of the appellant, therefore the appellant proved to be paid special damages as he demanded to be paid one million per month and the image of the appellant was used by the respondent for about 50 months. It is his argument that that the appellant did not consent his image to be taken and be used for promotion purpose as testified by the appellant before the trial court. He contended that the appellant testified that he went at Kibo Place Hotel for refreshment and he was looking football while taking some drink and exhibit Pl proves that. Referring to the case of STELLA MWANYIKA VS. CBS (HC) at Arusha, Civil Case 3 No. 7/2006 (unreported) and the book of LAW OF TORTS (21 st edition) he stated that in this case, knowledge has to be distinguished from consent. The appellant's counsel prayed this appeal be allowed on the following reasons; that the appellant's image was used for promotion and business purpose of the respondent, the respondent gained from using the image of the appellant as the same was used for promotion purpose and that the appellant suffered both mental and pecuniary loss since his image was captured and used without his consent. I have considered the submission of the appellant's counsel and also I have gone through the records of the trial court. The appellant's counsel argued the grounds of appeal jointly, but going through the said submission, I find the appellant centered his arguments on the issue of consent and whether the appellant proved the specific damages of Tshs. 50,000,000/= as sought in the plaint. In regard to the issue of consent, the appellant's counsel submitted that the appellant testified before the trial court that the image of the appellant was taken without his awareness and his consent and the same was used by the respondent for business promotion of the defendant's hotel. The appellant became aware of the existence of the said image in the respondent's website after being notified by PW2. The trial Magistrate after analyzing the evidence of both sides, he was satisfied that the appellant was aware and consented to the shooting exercise basing on the evidence of DW1 who stated that before the photographer taking a picture, she introduced the issue of photography for promotion materials to the appellant who was in the bar lounge and the 4 appellant did not mind for the photo to be taken and they proceeded to take a photo. In order to be satisfied in this appeal where there was consent from the appellant or not, I find it.necessary to start by identifying the meaning of consent. Black's Law Dictionary, Abridged Sixth Edition, define consent as; "Agreement/ approval,· permission/ the act or result of coming in to harmony or accord ..... " In the case of STELLA MWANYIKA VS. CBS, CIVIL CASE NO. 7 OF 2006, HIGH COURT OF TANZANIA AT ARUSHA (unreported), CHOCHA, J while trying to differentiate between knowledge and consent, referred to the book LAW OF TORTS, (2 nd Edition) which had the following remarks; "Mere knowledge of an impending wrongful act, or of the existence of a wrongfully caused danger, does not in itself amount to consent, even though no attempt is made by the plaintiff to prevent or avoid that act or danger. Consent involves an express or implied agreement that the act may be rightfully done or the danger rightfully caused." ( emphasis supplied). Basing on the definitions above, consent can simply be defined as an express of implied agreement to do a certain act. Now considering the evidence in record, can it be presupposed that the appellant consented his image/photo to be taken and used by the defendant for business promotion of the hotel? I agree with the trial Magistrate that under section 110 of the Evidence Act, Cap. 6 R.E 2002; it is the duty of the plaintiff to 5 prove his allegation in the balance of probabilities that his image was taken without neither his awareness nor his consent. The appellant testified before the trial court that his image was taken without his consent nor his awareness and that he did not believe about the presence of his picture in the website until he decided to cross check it in the defendant's website and his evidence was supported by the evidence of PW2 that he is the one who notified the appellant about the existence of hi~ image/photo in the respondent's website and when PW2 gave the appellant that information, at first the appellant did not believe him as such he asked him to confirm himself the presence of his picture in the respondent's website and the appellant tendered the printed copy of the said image (exhibit Pl). By assessing from the appearance of the image, although it show that the appellant did not face the camera but it might be suggested that photographer did take the picture from one side of the appellant where he could easily be seen though he did not face him; hence I agree with the evidence of DWl that considering the surrounding environment of the room it is very possible that the appellant was aware when the photographer was taking the picture as such I concur with the finding of the trial Magistrate that there was consent. Even if it could be found that there was no consent from the appellant before taking his picture, now the issue is whether the appellant is entitled to Tshs. 50,000,000/= as special damages? The law is very certain that, special damages must be proved. In the case of BAMBRASS STAR SERVICE STATION VS. MRS. FATUMA MWALE 2000 TLR 390, it was stated that; 6 ..., ''It is trite law that special damages being exceptional in their character and which may consist of off pocket expenses and loss of earnings incurred down to the date of trial must not only be claimed specifically but also strictly proved" As I have gone through the records, there is no evidence from the appellant to establish the specific damages as sought rather the appellant's claim for damages is based on presumption therefore he ought to have claimed general damc1ges. Since he claimed special damages which he failed to prove then the court cannot award him. As well since he didn't claim for general damages, the court cannot grant what was not prayed for. Basing on the above, I therefore find that the appellant failed to prove his claim as such the trial Magistrate properly dismissed his claim. As such I therefore dismiss this appeal with costs. Order accordingly. --=:::;z!:+::==-.:c-..,.£..-~ F. . ASSENGI JUDGE 08/10/2015 Judgment delivered in Court this 8th day of October, 2015 in the presence of the appellant in person and in absence of the respondent. I Right of appeal to the appellant f_µu.y--.i., F.H. MASSENGI JUDGE 08/10/2015 7