MAGIC LAMECK VS ALISTAIR

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM SUB-REGISTRY)

AT DAR ES SALAAM CIVIL APPEAL NO. 76 OF 2023 (Originating from the District Court of Kinondoni in Civil Case No. 79 of 2020) MAGIC LAMECK MWAMWINDI…......……….…….….…………. APPELLANT

VERSUS ALISTAIR EQUIPMENT SERVICES (T) LTD ……………..……… RESPONDENT

JUDGMENT 11th September & 17th December, 2024 BWEGOGE, J.: The above-named appellant herein is a machine operator. Way back in 2016 and 2019, allegedly, the respondent herein without consent, used the appellant's image/picture in printed T-shirts; signposts and brochures bearing her name (ALISTAIR) in commercial advertisements. Having issued a demand notice to the respondent, which was not heeded, the appellant commenced civil proceedings against the same in the District Court of Kinondoni claiming compensation of TZS 120, 000,000/=, among others for invasion of his privacy. 1 The respondent vehemently denied the alleged use of the appellant’s image/picture in her commercial advertisement without explicit consent, let alone the refuted relationship whatsoever with the appellant. At the end of the trial, the trial court found that the appellant failed to prove that the T-shirts bearing his image/picture were produced by the defendant and used for commercial purposes. The appellant was not amused with the decision of the trial court; hence, this appeal. The appellant advanced four (4) grounds of appeal as hereunder mentioned: 1. That the trial principal resident magistrate erred in law and fact in holding that the appellant failed to prove his case against the respondent.

2. That the trial principal resident magistrate erred in law and fact for failing to appreciate the contents of exhibit P1 in which the respondent admitted to have used the appellant’s photographs.

3. That the trial principal resident magistrate erred in law and fact to assume jurisdiction in a case which was filed and registered in the District Court of Kinondoni and delivered the judgment and decree in the Resident Magistrates’ Court of Kivukoni without giving reasons for the transfer of the proceedings. The appellant was represented by Mr. Jethro Turyamwesiga; and the respondent had the services of Mr. Emmanuel Mbuga, learned advocate. The appeal was argued by written submissions. 2 Submitting on the 1st ground of appeal, Mr Turwamwesiga, argued that the appellant’s case was proved to the standard required in civil cases (on the balance of probabilities). That the appellant adduced evidence proving that the respondent used his photograph in their commercial advertisements without his consent; and his testimony was augmented by PW2, an eye witness. The counsel alleged that the trial principal resident magistrate merely made reference to exhibit P2 but didn’t consider the respective evidence in her decision. The counsel opined that had the trial magistrate directed his mind to the evidence (exhibit P1) he would have reached a different conclusion. The counsel reiterated that the appellant proved his case against the respondent on the balance of probabilities. In substantiating the 2nd ground of appeal, the counsel contended that the presiding Magistrate did not

consider/ignored the contents of exhibit P1 in which the respondent admitted in writing that she used the appellant's photographs. That this admission was not controverted by any evidence from the respondent. Hence, based on this evidence, the trial court should have entered judgment for the appellant. Further, the counsel alleged that the trial magistrate dwelt at length discussing exhibit P2, a T-shirt bearing the appellant’s image, which was 3 misplaced during the pendency of the trial. Hence, the defence witness (DW1) was neither examined nor cross-examined on the respective evidence. Hence, the testimony of the defence witness (DW1) was not entitled to credence. Regarding the 3rd ground of appeal, the counsel charged that the suit was filed in the District Court of Kinondoni, but the judgment and decree were issued by the Resident Magistrate sitting at Kivukoni. That there was no transparency in the process of transfer of the case. Citing the case of Rex vs. Sussex Justice (1924) IKB 256 the counsel asserted that “justice should not only be done but manifestly and undoubtedly seen to be done.” Further, the counsel asserted that the appellant doubts the proceedings from which the judgment and decree emanate which is different from the court in which the suit was filed. Hence, the integrity of the proceedings is questionable. The case of Fanuel Mantiri Ng’unda vs.

Herman Mantari Ng’unda [1995] TLR 155 was cited to bolster the point. Based on the above premises, the appellant’s counsel prayed this court to vary the decision of the trial court. Responding to the 1st and 2nd grounds of appeal jointly, the respondent’s counsel contended that the appellant failed to prove his case to the required standard based on the following grounds: One, the appellant 4 failed to enlighten the trial court on how his photograph got into the possession of the respondent. Hence, the lack of explanation as to how the alleged photograph landed to the appellant, coupled with the fact that the appellant admitted that he never made any arrangement with the respondent for his image/ photograph to be taken, renders the determination of the issue of consent nugatory. The case of Ivanna Felix Teri vs. Viettel Tanzania Public Ltd Company Limited and Another, Civil Case No. 7 of 2019, HC (unreported) was cited to buttress the point. Two, the appellant alleged the respondent for invasion of his privacy at first instance in 2016; however, when the appellant was required to appear at the respondent’s office and prove that his image appeared in printed T-shirts, signposts and brochures bearing the respondent’s name, he failed to substantiate his allegation. Three, the appellant herein, in an attempt to prove that the respondent used his image/photograph for commercial

purposes, tendered a T-shirt and printed picture of the same as exhibits which were admitted in evidence as exhibit P2 collectively. However, during the cross-examination, the appellant admitted that he neither knew the person who supplied him with the respective wear nor his employer. The same admission was made by PW2 who augmented 5 the appellant’s testimony. Four, the respondent categorically refuted the allegation of unconsented use of the appellant’s image. Specifically, DW1 testified that the respective T-shirt (exhibit P2) bear the name “ALISTAIR” without any description relating to the respondent's company. Based on the above arguments, the respondent’s counsel asserted that the provision of section 110 of the Law of Evidence Act [Cap. 6 R. E. 2022] instructs that who alleges must prove whereas upon failure to prove the allegation/claim to the standard set by law (proof on the balance of probabilities) the case should be decided to the benefit of the defendant. The counsel cited the case of Buco Investment Holding Ltd vs. CRDB Bank Plc & Another (Commercial Case No. 15 of 2016) [2019] TZHCComD 178 wherein the court citing the case of Miller vs. Minister of Pensions [1937] 2 AIL ER 372 stated inter-alia; “If at the end of the case, the evidence turns the scale definitely one way or other, the tribunal must decide accordingly, but if the evidence is so evenly balanced

that the tribunal is unable to come to a determinate conclusion one way or the other, then the man must be given the benefit of the doubt. This means that the case must be decided in favour of the man unless the evidence against him reaches the same degree of cogency as required to discharge a burden in civil cases. That degree is well settled. It must carry a reasonable degree of probability, but not so high as required in 6 a criminal case. If the evidence is such that the tribunal can say- we think it more probable than not the burden is discharged, but if the probabilities are equal, it is not …………..” Respecting the 3rd ground of appeal, the counsel contended that the allegation of unprocedural transfer of the case file from the trial court (District Court of Kinondoni) to the Resident Magistrates' Court of Kinondoni, at Kivukoni, ought to be raised in the trial court. Otherwise, the counsel conceded that the records indicate that the matter herein was lodged in the District Court but later concluded in the Resident Magistrate's Court. The counsel opined that this is an anomaly which can be rectified under section 96 of the Civil Procedure Code [Cap 33 RE 2019]. The cases of Stanley Runyoro vs. Ms Campass Construction Co. Ltd (Civil Appeal 31 of 2020) [2020] TZHC 4154 and Finca Tanzania Ltd vs. Wildman Masika & 11 others, Civil Appeal No, 173 of 2016, among others, were

cited to bolster the point. Based on the above grounds, the counsel prayed this court to find this appeal without merit and dismiss the same with costs. 7 In canvassing the grounds of appeal raised herein, I prefer to commence with the 1st and 2nd grounds of appeal jointly, as they are intrinsically related. The complaint in the 1st limb is that the trial court erred in finding that the appellant failed to prove his case. And it is alleged in the 2nd limb that the trial court failed to consider exhibit P1. To delve into these two grounds; I am constrained to revisit the evidence adduced in the lower court. Unarguably, this court being the first appellate court is entitled to re-evaluate the evidence adduced in the lower court and reach its own conclusion [Future Century Limited vs TANESCO (Civil Appeal No. 5 of 2009) [2016] TZCA 200]. The appellant was a key witness in the trial court. In substance, he deponed thus: Sometime in 2016, he saw his picture/image in the T-shirt of which at the back, the respondent’s name “ALISTAIR” was scribed. Likewise, he received numerous calls from his buddies who congratulated him for securing employment with the respondent’s company. Right away he instructed his lawyer to take legal action against the respondent. The demand notice to that effect was issued to the respondent by his lawyer whereas the respondent in her reply (exhibit P1) denied

any liability though suggested that the appellant might have consented his picture to be taken for the respondent’s use. The appellant vehemently denied to 8 have consented his image to be used by the respondent for commercial purposes. Further, the appellant enlightened the trial court that in the first instance, in 2016, he didn’t take any legal action against the respondent. Later in 2019, he happened to be at the Dar es Salaam Port and encountered a person distributing T-shirts to every person who wished to have one. He likewise, received one. Upon scrutiny, he identified his image on the respective wear bearing the respondent’s name; hence, instructed his counsel to take legal action by instituting this case. The appellant claimed to have suffered damages for the respondent’s use of his image for commercial purposes coupled with embarrassment from his colleagues who kept congratulating him for securing a job with the respondent which he had not. The evidence adduced by the appellant was augmented by the testimony of one Kewesi Peter Saujulu (PW2), his colleague. PW2 merely informed the trial court that in 2019, while selling his fruits, one of his clients appeared dressed in a T-shirt which had the image of the appellant. He duly notified the appellant to that effect. This was all about the prosecution case. 9 To the contrary, the respondent’s employee namely, Doris

Nchimbi (DW1) deponed that the name ALISTAIR denotes a group of companies trading by the names: ALISTAIR James Company; ALISTAIR Equipment Services Company; and ALISTAIR Free Port Company. That the companies mentioned above have distinct uniforms and logos. Specifically, DW1 identified herself as the employee of ALISTAIR Equipment Services Company, the respondent herein. Categorically, DW1 enlightened the trial court that in the first instance, the appellant lodged his complaint against the respondent in 2016 alleging that his image was used by the respondent for commercial adverts without his consent. Consequently, they summoned the appellant to show the alleged signpost, advert and, or T-shirt and identify his image for necessary action to be taken. However, the appellant failed to come up with any evidence to that effect. Hence, the complaint was withdrawn. However, later in 2020, the appellant instituted a suit against the respondent alleging invasion of his privacy. Suffice it to mention that DW1 hit the sky denying any wrongdoing on the part of the respondent and vehemently denounced the allegation that the respective T-shirt (exhibit P2) belonged to the respondent. This is all about the defence case. 10 The trial court formulated the following issues for determination.

1. Whether the defendant employed the plaintiff’s photograph in its commercial advertisement.

2. Whether the plaintiff consented to the defendant’s use of his photographs. 3. (If issue No. 1 is answered in the affirmative then) At what time was the plaintiff’s photograph was used by the defendant?

4. Whether the plaintiff suffered damages.

5. To what relief(s) are parties entitled. In delving into the 1st issue, the trial court opined that the appellant shouldered the burden of proof pertaining to the factual matters he invited the court to rely on in deciding in his favour. And after evaluating the evidence laid on its table, the court reached a conclusion that the appellant failed to prove that the T-shirt (exhibit P2) was printed by the respondent. It was opined that the appellant had a duty to procure the attendance of the person who supplied him with the respective T-shirt (exhibit P2) to enlighten the court from whom it was obtained. Otherwise, the court opined that the appellant failed to link the wear (exhibit P2) in question with the respondent. The existence of three companies bearing the name ALSTAIR coupled with denials made by DW1 exacerbated the doubts entertained by the trial court. Thus, the trial court was of the view that the said wear might have been produced by an independent person apart from the respondent. Based on this conclusion, the 1st issue was 11 answered in negative. Consequently, the remaining issues collapsed, leading to the dismissal of the suit with costs. Now can it be asserted that, based on evidence adduced by the parties, the trial court arrived at a wrong conclusion? This question I proceed to answer hereinafter. Primarily, as rightly contended by the respondent’s counsel,

in civil proceedings, it is the plaintiff who bears the burden of proof, on the balance of probabilities, to succeed in his action. See the cases; Godfrey Sayi vs. Anna Siame (as Legal Representative of the Late Mary Mndolwa), Civil Appeal No. 114 of 2014, CA (unreported) and Barelia Karangirangi vs. Asteria Nyalwamba, Civil Appeal No. 237 of 2017, CA (unreported); and Anthony Masanga vs Penina (Mama Mgesi) & Another, Civil Appeal No. 118 of 2014, CA (unreported), among others, in this respect. In particular, in the case of Ernest Sebastian Mbele vs. Sebastian Sebastian Mbele & Others (Civil Appeal 66 of 2019) [2021] TZCA 168 the Apex Court had this to say: ...in Godfrey Sayi v. Anna Siame as Legal Representative of the late Mary Mndolwa, Civil Appeal No. 114 of 2012 (unreported) we said: - 12 ‘It is similarly common knowledge that in civil proceedings, the party with legal burden also bears the evidential burden and the standard in each case is on a balance of probabilities.’ “ Further, the Court being citing the Indian case of Narayan Ganesh Dastane v. Sucheta Nayaran Dastane (1975) AIR (SC) 1534 held: "The normal rule which governs civil proceedings is that a fact can be said to be established if it is proved by a preponderance of probabilities. This is for the reason that ...a fact is said to be proved when the court either believes it to exist or considers its existence

so probable that a prudent man ought to act upon the supposition that it exists. A prudent man faced with conflicting probabilities concerning a fact situation will act on the supposition that the fact exists, if on weighing the various probabilities he finds that the preponderance is in favour of the existence of the particular fact. As a prudent man so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second. Within the wide range, of probabilities the court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance of probabilities lies." 13 That said, I now revert to the matter at hand. t is common ground that the right to privacy in this land is enshrined by the Constitution of the United Republic of Tanzania of 1977, as amended. Hence, invasion of personal privacy is actionable per se, commonly under tortious liability. The person alleging invasion of his privacy and, or infringement of his constitutional right is shouldered with a burden to prove three ingredients; one, use of personal image (protected attribute) by the defendant; two, appropriation of the respective image by the defendant

for commercial /gain purpose; and three, without the consent of the claimant. Thus, ab initio, the appellant had a duty to prove the use of his image (protected attribute) by the respondent. Now can it be asserted that the appellant discharged this burden? My answer is negative as demonstrated hereafter. The plaint instituted in the trial court alleged that the respondent herein, without his consent, used his image/picture in printed T-shirts; signposts and brochures bearing the name ALISTAIR in her commercial advertisements. However, in testifying before the trial court the appellant enlightened the trial court that having received the reply to the demand notice, he opted to take no legal action. No reason for the said inaction was given by the appellant. DW1 had made it clear that the appellant was required to bring proof of his allegation so that the 14 respondent would settle the score with him but he could not bring any proof to that effect. The truth of the matter is found in the appellant’s own testimony that it was not until 2019 that he got hold of the evidence (T-shirt) of the respondent’s use of his image for commercial purposes that he instituted a suit against the same. Thus, the only evidence against the respondent in the trial court is exhibit P2 (T-shirt). As rightly opined by the trial court, it is obvious that the appellant failed to link the said exhibit with

the respondent herein. In the first instance, the appellant asserted that the person who supplied him with the wear (exhibit P2) was someone who introduced himself as an employee of the respondent. However, during the cross-examination, the appellant changed version and stated that the person who supplied him with the T-shirt didn’t disclose the fact that he was working with the respondent. Likewise, PW2 at first instance enlightened the trial court that the person whom he witnessed wearing the respective T-shirt bearing the appellant’s picture told him he received the same from the respondent herein. However, during the cross-examination he changed his version and stated that the particular person was a stranger to him; the same didn’t tell where exactly he obtained the wear in question. 15 The above contradictions, the denial made by the DW1 distancing her employer (respondent) from the ownership of the wear in question, coupled with three sister companies bearing the same business name “ALISTAIR” cast doubt on the appellant’s case in the trial court. Likewise, I entertain the same doubt. The appellant was supposed to furnish evidence specifically linking the respondent with the respective wear (exhibit P2) apart from other companies bearing the same name, among others. Suffice it to say that the appellant’s case fell short of the standard expected in the civil

proceedings. It was argued by the appellant that had the trial court focused on exhibit P1 would have arrived at a different conclusion. The reason for this assertion is based on the ground that the reply to the demand notice (exhibit P1) comprises admissions by the respondent in that the appellant consented to the use of his image. Admittedly, the respondent having received the demand notice bearing the complaint about the unauthorized use of the appellant’s image, replied to the effect that the appellant might have been photographed during employment/picture taken voluntarily. Likewise, it is indicated in the respective document that the appellant was invited to the respondent’s office for proof of the complaint for necessary action. As I said earlier, the appellant failed to prove and was constrained 16 to withdraw the complaint until 2020 when he grabbed what he considered convincing evidence. Thus, I find no merit in the 1st and 2nd grounds of appeal. Pertaining to the 3rd ground of appeal alleging unprocedural transfer of a case from the District Court to the Resident Magistrates’ Court, as rightly contended by the respondent’s counsel, the matter herein was filed in the District Court of Kinondoni but properly assigned to the Principal Resident Magistrate sitting in the Resident Magistrates’ Court of Kinondoni, at Kivukoni who concluded it. In fact, both courts sit in

the same building. And the resident magistrate sitting in the resident magistrates’ court has power to preside over the case instituted in the district court. Admittedly, the only discernible anomaly is that, contrary to the citation in the proceedings, the citation of the judgment and decree depict that the case was instituted in the Resident Magistrates’ Court of Kinondoni, at Kivukoni. The defect is nothing but a mere misdescription (misnomer) of citation of the trial court which is not fatal to the case [Finca Tanzania Ltd vs. Wildman Masika & Others (supra)]. Thus, I agree with the respondent’s counsel that the alleged defect in the citation of the judgment and decree are typographical errors which may 17 be remedied by invoking the provision of section 96 of the Civil Procedure Code. Thus, I find the 3rd limb of the objection unmerited as well. In sum, I find the appeal herein devoid of merit. The appeal is hereby dismissed in its entirety. Based on the circumstances of the case, I make no order for costs. So ordered. DATED at DAR ES SALAAM this 17th December, 2024 O. F. BWEGOGE

JUDGE 18