NBC VS EUGENIA MUGA COMM APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM COMMERCIAL APPEAL NO. 28072 OF 2023 (Appeal from the Judgment and Decree of the District Court of Ilala at Kinyerezi, in Civil Case No.86/2021 as per Hon. G.E. Nkwera SRM) NATIONAL BANK OF COMMERCE ……………………………….. APPELLANT VERSUS EUGENIA P. MUGA ……………………………………………………RESPONDENT JUDGMENT Date of last order: 5/12/2024 Date of Judgment: 07/03/2025 GONZI, J. By way of Memorandum of Appeal, the Appellant, being aggrieved by the Judgment and Decree of the District Court of Ilala at Kinyerezi, in Civil Case No.86/2021, appealed to this Court against whole Judgment and Decree on the following grounds: 1 1. That the learned Trial Magistrate erred in law for failure to allow departure of scheduling order so that Third party Application be issued against Scanad Tanzania Limited and henceforth caused miscarriage of justice. 2. That, the Learned Trial Magistrate erred in law and in facts for failure to properly evaluate evidence placed before her as a result she reached a wrong decision. 3. That, the Learned Trial Magistrate erred in law and facts in holding that the Respondent’s privacy was infringed upon by the Appellant. 4. That, the Trial Magistrate erred in law and in facts in holding that Appellant unjustifiably obtained benefit and or profit from alleged images 5. That, the Trial Magistrate erred in law and in facts in shifting the burden of proof to the Appellant hence failed to find that the testimony by the Respondent did not prove the case against the Appellant to the required standard. 6. That, the Trial Magistrate erred in law and in facts by failure to consider inconsistencies in the Respondents evidence and in particular admission made in cross- examination by the Respondent regarding her 2 consent to participate in photo-shooting during the launching of Kikundi Account. 7. That the Trial Magistrate erred in law and in facts in not holding that there was prior consent to use the Respondent image by the Appellant through Scanad Tanzania Limited and the Appellant was duly entitled to do so. 8. That, the Trial Magistrate erred in law and in fact in awarding the Respondent the sum of Tanzania Shillings Thirty Million (30,000,000/=) as general damages without assigning any reasons and that the amount was exorbitant in the circumstances. 9. That, the Trial Magistrate erred in facts and in law by awarding both punitive and exemplary damages in total of Tanzania Shillings Twenty Million only (20,000,000/=) without any proof of aggravated misconduct, or negligence on the part of the Appellant. The brief facts are that the Respondent was an intern at the Appellant’s office in 2018. In the course of her internship, she worked with a marketing department. Sometimes in October 2018 to June 2020 her photographs were taken and used by the Appellant in advertising its banking product known as 3 NBC Kikundi Mobile. The Respondent alleged that her image photos were taken and used without her consent. She stated that she was unaware of it until seeing the same being circulated after being posted on online social media platforms including Instagram. These allegations were disputed by the Appellant who alleged that the Respondent had consented in writing to her photographs being taken and used by the Appellant to advertise the NBC Kikundi Mobile. The Respondent approached the doors of the Court by filing Civil Case No.86/2021 against the Appellant in the District Court of Ilala complaining of infringement of her image rights. She sought reliefs in the form of general damages, punitive damages and exemplary damages. The Judgment and Decree of the District Court of Ilala was entered in her favour and she was awarded TZS. 50,000,000/= (Tanzania Shillings Fifty million) in total being TZS. 30 million as general damages, TZS. 10 million as exemplary damages and TZS. 10million as punitive damages. The Appellant was condemned to bear costs of the suit as well. Aggrieved, the Appellant appealed to this Honorouble Court challenging the Judgment and Decree of the District Court of Ilala on the above reproduced grounds of appeal. 4 With leave of the court, the hearing of the Appeal proceeded by way of written submissions. The Appellant was represented by Mr. Ibrahim Kibanda, Learned Advocate, whilst the Respondent enjoyed the services of Mr. Makubi Kunju Makubi, Learned Advocate. I thank both learned Counsel for their useful submissions. In their written submissions both counsel consolidated and reconstituted the nine grounds of appeal to four issues thus: 1. Whether the learned trial magistrate erred in law for failure to allow departure from the scheduling order so that third party application could be issued against Scanad Tanzania Limited and henceforth caused miscarriage of justice. 2. Whether the learned trial Magistrate erred in law and in facts for failure to properly evaluate evidence placed before her as a result she reached a wrong decision. 3. Whether the learned trial magistrate erred in law and in facts in awarding the respondent the sum of Tanzania shillings thirty million (30,000,000/=) as general damages without assigning any reasons and that the amount was exorbitant in the circumstances. 4. Whether the learned trial magistrate erred in law and in facts by awarding both punitive and exemplary damages in total of Tanzania shillings twenty million only (Tzs 20,000,000) without proof of aggravated misconduct or negligence on the part of the appellant. 5 On the first issue, Mr. Kibanda, Learned Advocate, submitted that the learned Trial Magistrate ought to have allowed the Appellant’s prayer for the court to make a departure from the scheduling Order so that third party Application could be made by the Appellant against Scanad Tanzania Limited. He submitted that the Appellant during the trial had orally moved the trial Court for leave to depart from the scheduling Order pursuant to Order VIII Rule 23 of the Civil Procedure Code CAP 33 R.E 2019 but that the prayer was not granted by the trial Court Magistrate thereby causing miscarriage of justice on the part of the Appellant. He submitted that the refusal to depart from the Scheduling Order was unjustifiable due to the fact that Scanad Tanzania Limited was an independent Contractor of the Appellant providing all creative services to the Appellant including photo shooting for various advertisements. He asserted that even the images of the Respondent complained of in this case, were taken by Scanad Tanzania Limited for use by the Appellant. He further submitted that, in the interest of justice, the trial Court was required to allow departure from the scheduling Order so that the Appellant could file Third Party Notice and thus invoke the right of indemnity or contribution from Scanad Tanzania Limited. He argued that the refusal caused Miscarriage of justice on the Appellant’s case. 6 On the second issue, Mr. Kibanda, Learned Counsel, submitted that the learned Trial Magistrate erred in law and in fact for failing to properly evaluate the evidence placed before her, as a result, she reached to a wrong decision as the Respondent was required to prove that her image had been taken by the Appellant without her consent. Mr. Kibanda submitted that the standard of proof is on the balance of probabilities as provided under section 3(2) (b) of the Law of Evidence Act, CAP 6 (R.E 2022). He submitted that the Respondent, Eugenia P. Muga, who testified as PW-1, was the only witness for the Respondent during the Trial and that she tendered a collection of various images which were admitted as Exhibit P-1 collectively. He submitted that, on the other side, the Appellant paraded two witnesses at the trial namely Alina Maria Kimario who testified as DW-1 and who maintained that the Appellant had followed due process in using the image of the Respondent and that the Respondent had consented to the use of her image. Additionally, DW1 testified that the Respondent had participated in the whole exercise of photo shooting at Msasani Market as a representative of Marketing Department of the Appellant while at the time being an intern. Mr. Kibanda, argued that the assertion by DW 1 was corroborated by the evidence of Adeline Mtei who 7 testified as DW-2 and who also had participated in the photo shooting event at Msasani. It was submitted that DW 2 testified that the Respondent was their Coordinator from the Marketing Department of the Appellant. Testifying further, DW 2 stated that that the Respondent was personally coordinating with Scanad Tanzania Limited during the photo shooting exercise and she was aware that her image would be used in advertisements of the NBC Kikundi Mobile Bank. Mr. Kibanda, Learned Counsel, submitted that from the testimonies of DW-1 and DW-2, it was apparently clear that the Respondent did not prove her case on the required standards against the Appellant. On the third reconstituted ground of appeal, Mr. Kibanda, Learned Counsel, submitted that the trial Court did not assess the general damages in accordance with the evidence. He argued that as per the evidence of PW- 1, the picture was used from October 2018 to June 2020 which is almost 20 Months only. He argued that the trial magistrate considered irrelevant factors like failure to secure employment by the Respondent because of the advertisements using her image hence implying that she was already an employee of the Appellant. Mr. Kibanda argued that the appropriate way to assess the general damages was for the Court to use the minimum wage of TZS. 500,000/= per month, which the Respondent was receiving as an 8 Intern, by multiplying the same by the 20 months of the Appellant’s using her images. This would bring the amount to a total of Ten Million shillings only. He prayed for this court to reduce the granted general damages accordingly. On the fourth ground of appeal, Mr. Kibanda, Learned Advocate, submitted that the Trial Magistrate granted the Respondent both Punitive Damages and Exemplary damages to the tune of TZS. 10,000,000/= each. He cited the case of BACO AND AYOUB CO. LIMITED VERSUS PERMANENT SECRETARY MINISTRY OF DEFENCE AND NATIONAL SERVICE, AND OTHERS, COMMERCIAL CASE NO. 40 OF 2015, where exemplary damages and punitive damages were elaborated to mean the same thing. Mr. Kibanda submitted that the Learned Trial Magistrate erred in law and in facts by awarding both punitive and exemplary damages in total of Tanzania Shillings Twenty Million only (TZS. 20,000,000) without proof of aggravated misconduct or negligence on the part of the Appellant. For this he cited the case of REV. CHRISTOPHER MTIKILA VERSUS ATTORNEY 9 GENERAL [2004] T.L.R 172. He concluded by praying for the Appeal to be allowed with costs. On the side of the Respondent, Mr. Makubi Kunju Makubi, Learned Advocate, started his reply submissions with the first reconstituted ground of appeal. He argued that the prayer by the appellant for the trial court to depart from the scheduling order was misplaced as the appellant had no good reasons for the Court to grant the prayer because under Order VIII B rule 23 of the Civil Procedure Code Cap.33 [R.E 2019], the court may only order a departure from the scheduling order when there is a sufficient cause advanced by the person who so prays. He referred the Court to the case of ESTERN AFRICAN FOSSILS CO. LTD AND 3 OTHERS VERSUS ECO BANK TANZANIA LIMITED, MISC. COMMERCIAL APPLICATION NO.213 OF 2022. Mr. Makubi, Learned Advocate, submitted that during the pre-trial conference, parties are supposed to avail the court with all relevant information or material facts related to the matter before the court. In this matter, the appellant did not inform the court anything regarding its intended Third Party Application against its agent namely Scanad Tanzania Limited. 10 He argued that while the appellant blames the trial court for rejecting her prayer, the appellant did not furnish the court with the said contract between the appellant and Scanad Tanzania Limited, so as to convince the court that there was a third party against whom the appellant had a claim of right. Cementing further his argument, Mr. Makubi, Learned Advocate, submitted that leave to file a third-party notice is not automatic but it may only be granted upon sufficient cause being shown as envisaged under Order I rule 14 (3) of the Civil Procedure Code CAP.33 [R.E 2019]. He submitted that the Appellant’s application was not a formal application hence it was not supported with an affidavit in which the sufficient cause could have been shown to the court. In the circumstances, he argued, the oral application of the Appellant’s Advocate could not warrant the trial court’s departure from the Scheduling Order and grant the Appellant leave to present a Third Party Notice. On the second reconstituted ground of appeal, Mr. Makubi, Learned Advocate, submitted that the principle is that parties are bound by their pleadings and that he who alleges must prove. He reasoned that the trial magistrate was convinced and satisfied that the respondent had proved her case against the appellant while the appellant had failed to prove all the 11 allegations which were brought forward as her defense. He submitted that the respondent’s testimony was that she did not consent to the photo shooting and/or that she did not sign any agreement consenting to her photograph being used in the appellant’s commercial advertisements. Mr. Makubi, Learned Advocate, argued that the Respondent’s case was that the appellant had taken advantage of her being an intern in the Appellant bank to take her photographs without her consent and proceed to use her images in the Appellant’s commercial advertisements as a result of which she suffered damages. Mr. Makubi submitted that since the respondent testified that she did not consent to her images being used by the Appellant, it was, therefore, the duty of the appellant to prove that the Respondent had indeed consented. However, nothing was brought in court to prove the allegations of consent. He added that in the circumstances, Scanad Tanzania Limited who is the Appellant’s Agent responsible in the photo shooting event, was a very material witness for the Appellant but was never paraded in court to testify and disprove the respondent’s allegations of lack of consent. Mr. Makubi thus prayed that an adverse inference was correctly drawn by the Trial Court against the Appellant in this regard for failure to produce a material witness. Mr. Makubi, Learned Advocate, submitted that DW1 12 testified that there was an agreement between Scanad Tanzania Limited and the participants including the respondent, however, the alleged agreement was never tendered in court. On the third reconstituted ground of appeal, Mr. Makubi, Learned Advocate, submitted that general damages are meant to compensate the sufferings endured by the respondent. He argued that general damages are used to restore the victim to the original position she was before the occurrence of the act complained of. He argued that the circumstances to be considered in awarding damages differ from case to case because each case has its own circumstances and the value involved. He argued that the appellant’s submissions that the trial court did not advance reasons for the award of damages is misleading. He submitted that referring to the issues and the judgment, it is clear that the reasons upon which the court based on to award the damages, were stated from the last paragraph of page 6 up to the first paragraph of page 7 of the printed Judgment of the trial Court where the court determined issue number 3 as to whether the respondent had suffered damages. 13 Further, Mr. Makubi argued that the respondent had prayed for payment of TZS. 100,000,000/= (One hundred million shillings) only, as general damages but the court ended up awarding her only TZS. 30,000,000/= (Thirty million shillings) only. He argued that the amount of TZS. 10,000,000/= (ten million shillings) proposed by the Appellant on the basis of the principle of minimum wage of Tshs. 500,000/= per month times 20 months, is not a principle of law in awarding/calculating general damages rather the Appellant’s own formulae which cannot be applied by the court since general damages are awarded at the discretion of the court. On the fourth ground of appeal, Mr. Makubi, Learned Advocate, submitted that the appellant was reckless. He reasoned that being a big, reputable and well managed bank, with competent senior and experienced lawyers, the Appellant was not expected to act in such a way of using the respondent’s image in its commercial advertisements without the respondent’s knowledge and consent, for commercial gain. He argued that it is on the basis of the recklessness and fraudulent conducts that the respondent prayed for punitive damages as an additional damage. Therefore, Mr. Makubi, Learned Advocate, submitted that while punitive damages were prayed for as additional damages basing on reckless and fraudulent conduct, exemplary 14 damages were prayed for so as to punish the appellant. He argued that in the premises, the trial court was right to award these damages separately. He urged the court to dismiss the Appeal with costs. That marked the end of the submissions by the Learned Counsel for the parties. I am now set to determine the Appeal at hand. I will determine it in line with the four issues argued by the Learned Counsel in this case. The first issue is whether the trial Magistrate erred in law for refusing to allow the Appellant’s prayer for departure from the scheduling order under order VIII Rule 23 of the Civil Procedure Code CAP 33 (R.E 2019). Departure from or amendment of the scheduling order is allowed. Order VIII Rule 23 of the Civil Procedure Code provides that: “Where a scheduling Conference order is made, no departure from or amendment of such order shall be allowed unless the Court is satisfied that such departure or amendment is necessary in the interests of justice and the party in favour of whom such departure or amendment is made shall bear the costs of such departure or amendment, unless the court directs otherwise.” 15 The position was well reiterated in the case of Prashant Motibhai Patel v Azania Bank Limited & another (Commercial Case 37 of 2020) [2022] TZHCComD 66 (Tanzlii) where it was held: “In this present case, the Plaintiff's advocate has prayed to amend the scheduling order as well. Well and good but in the case of Gastech (supra) this Court made it clear, and I quote, that: "to obtain an amendment of the scheduling order, a party must apply for such, and as a matter of necessity, must demonstrate “good cause” for such amendment. In essence, a court’s decision on what constitutes the “good cause” will include focusing the diligence (or lack thereof) of the party requesting for such amendment more than it does on any prejudice to the other party. Otherwise, a Court will disfavor prayers to amend whose timing prejudices the opposing party by let us say, requiring a re-opening of discovery with additional costs, a considerable deferment of the trial, and a likely major variation in trial strategy." I have gone through the proceedings in the trial Court. Indeed, there was a prayer by the Learned Counsel for the Appellant for the court to depart from the Scheduling Order to allow the Appellant to make an application for 16 issuance of 3rd Party Notice. The application was denied. I have considered whether the Appellant demonstrated a “good cause” for such amendment and whether or not the Appellant was diligent in requesting for such amendment. In my considered opinion no good cause was shown. By the time the 1st Pretrial Conference was being held, pleadings were complete and the Appellant was in a position to project the future events of her case. Yet the Appellant did not deem it necessary to make room for the application for issuance of Third Party Notice. The Application was made orally without any accompanying affidavit from which the good cause could have been discerned. Therefore, there was no documented basis for the Appellant to base her application for departure from the Scheduling Order. Further, the Appellant did not demonstrate in Court existence of any Agency Agreement between the Appellant and her purported Agent Scanad Tanzania Limited. The pleadings of the Appellant with the annextures thereto did not bear any facts hinting towards a likely Third-Party claim. Equally, no affidavit was filed to show the trial Court that there was a likely justification of issuance of 3 rd Party Notice. The nature of the departure that was sought also would have resulted into a considerable deferment of the trial to pave way for the determination of the Application for issuance of 3rd Party Notice. The 17 Appellant has argued that the denial of her prayer for departure from the Scheduling Order to allow issuance of 3rd Party Notice prejudiced the Appellant’s case in the trial. I do not find it so. The denial to allow the Appellant leave to bring 3rd Party Notice against Scanad Tanzania Limited, did not bar the Appellant from suing the said Scanad Tanzania Limited by way of independent proceedings other than by issuing a 3rd Party Notice. The Appellant could, and still can, bring an independent suit for the alleged breach of the agency agreement between the Appellant and the alleged 3rd Party. In that regard, the Appellant was not prejudiced. The first ground of appeal therefore fails. The second reconstituted ground of appeal was whether the Trial Magistrate failed to evaluate the evidence properly and thus reached a wrong decision. The Appellant argued that the Respondent presented only one witness whereas the Appellant presented two witnesses at the trial. On this my finding is that it is not the number of witnesses but the probative value of their evidence, which matters. The central issue at the trial was whether or not the Respondent had consented to the Appellant’s use of her image to advertise the Appellant’s business? The Respondent was adamant that she 18 had never consented orally or in writing. The Appellant through the oral testimonies DW1 and DW 2 claimed that there was in existence such an agreement wherein the Respondent had given a written consent. The alleged agreement was allegedly being kept by the Appellant’s Agent Scanad Tanzania Limited who was holding the original contract and the Appellant was holding a copy thereof. By the end of the trial, no such agreement was tendered in Court by the two witnesses for the Appellant. In short, the two Appellant’s Witnesses had attempted to prove the existence and contents of documentary evidence by their oral testimonies only without the alleged document ever being tendered in court. Is it allowed for a document to be proved in court orally? The best evidence rule requires that the existence, condition or contents of a document must be proved by primary evidence, that is, the document itself should be produced for the inspection of the Court. The exceptions to the requirement are provided under section 67 of the Evidence Act. In this case the original agreement of consent itself was not produced in Court and the exceptions under section 67 of the Evidence Act were not resorted to. Contrary to the requirements of the law of evidence, before the trial court, the Appellant sought to prove existence and contents of documentary evidence, orally. That violated section 100 of the 19 Evidence Act that incorporates the parole rule of evidence which excludes incompatible oral evidence with respect to evidence that should have been proved by documentary evidence. Section 100(1) of the Evidence Act provides: 100.-(1) When the terms of a contract, grant, or any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant, or other disposition of property, or of such matter except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions of this Act. In this case, it was throughout the standpoint of the Appellant that the terms of a contract by which the Respondent had given her consent for the Appellant to take her photographs and use her images in its advertisements, had been reduced into the form of a document and thus there existed a written contract by which the Respondent had given her consent for her image to be used in the commercial advertisements of the Appellant. The 20 testimony of DW 1 at page 38 of the un-numbered typed proceedings of the trial court, on this aspect, runs as follows: “The agreement between Scanad and the participant were done in a certain form and it established where the adverts will be used and the forms were given from Scanad Tanzania Limited. We were given the copies of the agreement; we did not obtain the Eugenia copy but still we are looking for it. The original agreement is with Scanad Tanzania Limited.” At page 40, when DW 1, was being cross examined by Mr. Makubi, Learned Counsel for the Respondent, during the trial, DW1 stated: “You can’t use some one photograph without written agreement. We did not tender the contract between the bank and Scanad Tanzania Limited as evidence. I pray the court to consider all the evidence.” DW 2’s testimony is seen at page 47 of the proceedings of the Trial Court upon being cross-examined by Mr. Makubi and Mr. Mafuru, Learned Advocates for the Respondent where she said: “The advert to volunteer for taking photos for Kikundi account was orally. I agreed oral too. We did 21 not signed any agreement with the marketing department Scanad at that stage. The contract was signed after the photos were taken. I have my copy of the contract. I did not tender it as exhibit. “ Upon being Re-examined Mr. Mwaiteleke, Learned Advocate, DW 2 was insistent that: “we signed the contract after taking the photos.” It must be noted that DW 2 was allegedly one of the participants in the photo shooting event for the use of the Appellant to advertise her business. Regarding the circumstances under which the photos of the Respondent and others were taken by the Appellant, the same is seen in the testimonies of both DW1 and DW2. To begin with DW1 she testified, and I quote verbatim the proceedings of the trial Court, that: “We have Kikundi account at NBC and Eugenia came the penial when were lounging this kikundi account and she was at the exercise for supervisor photos for adverts. The photos were taken for Msasani nearly CCBRT hospital. We told the bank officers and interns to whoever who will like to take the photos and people listed their names and picture and the agency choose themselves the people (four people). The give (sic) their names willing they first bring the names and the photo agency took the look on their 22 appearances and they choose the participants. supervisor was from scanned Tanzania ltd. Standard Tanzania ltd was the one who suspending the whole setting. In exhibits P1 there is John Mosha, who act as a daladala driver. There is Joland Solongoro who acts like one who sells fruit and Eugenia who acted as mama lishe”. The testimony of DW2 on the circumstances the photos of the Respondent were taken as per the proceedings of the trial Court reproduced verbatim were that: “We also work together on the advertisement of kikundi account and marketing department wanted people to volunteer for marketing advert and we were selected (4 people) those four people were I, Yolanda Songolo, John Mosha and the plaintiff. We were required to take note the that advert was not having any payments. We went to take photo’s at Msasani Market Scanad Company was responsible for taking all the photos. I played the scene as muuza vitumbua I was given a hijab to wear to that position. John Moshi acted as daladala driver he wore overall and Yolanda Songola was acting to be in genge “seller” she wore a dela too.” 23 I have also gone through Exhibit P1 which is the photograph of the Respondent taken while she was holding her mobile phone. The testimonies by the two witnesses for the Appellant during the Trial suggest that the persons whose photos were to be taken and used for the advertisement by the appellant had “listed their names”. However, in the trial court such alleged written list of names was not tendered as evidence. The alleged consent agreement was not tendered. In short, whereas the Appellant builds the picture that the entire process related to the taking photographs and using the images of the Respondent was consensual and well documented, no such documentary evidence whatsoever was tendered in court during the trial. Whereas DW1 was insistent that the consent agreement was in a written form, the alleged written agreement was never tendered during the entire trial. DW 2, on the other hand, contradicted DW 1 by saying that the consent agreement was actually not written but oral. In fact, DW 2 went ahead as to testify that the consent agreement for taking and using their photos, between the Appellant and the participants including the Respondent, was actually signed after their photos had been taken. The pertinent question, in the circumstances, is whether it can be candidly said that the participants, including the Respondent, had indeed agreed or 24 consented to their photos being taken and used by the Appellant for advertisement of the Appellant’s products while they had not signed any agreement, neither prior nor during the taking of their photographs? Can the consent (whether written or oral) allegedly given by the Respondent after the Appellant, through its agent, had already taken the photos of the Respondent, operate retrospectively? I do not accept that contention. To be valid, the consent by the Respondent for her photograph to be captured and the image to be used in advertising the business of the Appellant, should have been given prior to the taking of the photos of the Respondent by the Appellant through its agent Scanad Tanzania Limited. Therefore, with respect to the Learned Counsel for the Appellant, the trial Magistrate cannot be faulted for not acting on such inconsistent, irreconcilable, contradictory and inadmissible evidence given by DW1 and DW 2 in favour of the Appellant at the trial. At most DW 1 and DW 2 came to testify on their own consent having been given to the Appellant but not that of the Respondent. The allegation that the trial Court failed to evaluate the evidence of the Appellant is therefore unfounded as there was no cogent evidence worth the name in the first place. 25 I find that the evidence tendered by the Respondent during the trial, sufficiently proved the claim against the Appellant. In the case of JOHN RAPHAEL BOKO v PRINCESS LEISURE (T) LTD [2023] TZHC 20770 (Tanzlii), this court held that: “For an action for unauthorized use of image to succeed, the plaintiff must prove several issues. These are firstly, use of protected attribute, secondly, for exploitative purpose and thirdly, without consent. Further, the use should amount to a misrepresentation by portraying to the public that the plaintiff and the defendant were engaged in some commercial arrangements or that the plaintiff has endorsed the defendant's products.” [Emphasis Added] I also went through Exhibit P1 which is a picture of the Respondent facing the camera smiling and dressed in home clothes commonly known as “dera” holding a mobile phone, with few kitchen utensils- a theme which was for kikundi Mobile. The picture entails the theme in its entirety. It is one of the requirements for cases of this nature that the unauthorized use of the protected image should amount to a misrepresentation by portraying to the public that the plaintiff and the defendant were engaged in some commercial arrangements or that the 26 plaintiff has endorsed the arrangements or that the plaintiff has endorsed the defendant's products. Exhibit P1, the photograph of the Respondent, portrays the impression as if the Respondent is amongst the users of the Appellant’s Kikundi Mobile Account and who is enjoying the said services of the Appellant, hence, that the Appellant and the respondent are in a Banker- Customer relationship or commercial arrangement. It also gives the impression that the Respondent has endorsed the Appellant's product, namely the Kikundi Mobile Account and that she is thereby recommending it to other similarly placed members of the society trading as street food vendors commonly known as “mama lishe.” It turns out that the impression is false as the Respondent had not consented to enter into any such arrangements with the Appellant nor to her image being used to portray such an impression. In the trial, the Respondent testified that upon the advertisement bearing her photograph becoming viral in social media, her family stopped providing for her needs and her friends thought that she had secured employment with the Appellant and prospective employers refused to employ her believing that she was already affiliated with the Appellant Bank. These are the damages suffered. 27 On the third issue regarding general damages being exorbitant and that no reasons were assigned for awarding them, I refer the case of Anthony Ngoo & Another v Kitinda Kimaro [2015] TZCA 269. The Court stated thus: “The law is settled that general damages are awarded by the trial judge after consideration and deliberation on the evidence on record able to justify the award. The judge has discretion in the award of general damages. However the judge must assign a reason, which was not done in this case. Nevertheless, the trial judge awarded the plaintiff /respondent general damages of TShs. One Hundred Million (100,000,000) without assigning any reason for the same.” I have gone through the Judgment of the Trial Court and found that the trial magistrate stated, and I quote verbatim, that: “The court reasonably shall considered the reliefs to which the parties entitled fairly and reasonably basing on the facts available on the records. 28 Considering what the plaintiff success to prove before this court, I asses the damage to be 30,000,000 thirty Million.” Although the trial Magistrate was not specific on which facts specifically she relied upon in assessing the damages, I find that her assessment of damages was based on the facts available on record in this case. This being the first appellate court, I am entitled to re-evaluate the available evidence on this aspect. General damages are compensatory and discretionary in nature. The facts of the case show that the Respondent suffered loss due to the unauthorized use of her image in the advertisements of the Appellant’s banking product. The Respondent testified that upon the advertisement bearing her photograph becoming viral in social media, her family stopped providing for her needs and her friends thought that she had secured employment with the Appellant, also, prospective employers refused to employ her believing that she was already affiliated with the Appellant Bank. In essence, the Respondent advanced suffering losses in terms of her diminished chances of getting employed despite having secured a degree qualification in her field. She also substantiated loss in the form of stoppage of family support from her parents/ guardians, relatives and friends who 29 genuinely believed that the Respondent was already employed or getting paid handsomely by the Appellant which is a reputable bank. All these were substantiated on the balance of probabilities. In my view, these facts constituted sufficient proof of general damages on the balance of probabilities. The argument by the Appellant that the Respondent ought to have been compensated at the monthly salary of TZS. 500,000/= does not hold water. This is not a termination of employment dispute. The Respondent did not lose employment pay of TZS. 500,000/= per month. She testified that she had totally lost chances of being employed at all. At any rate it is not the case that if employed her salary would have been TZS. 500,000/= per month and that her employment would have ended after 20 months only. In short, the argument is irrelevant in consideration of general damages, in the circumstances of this case. The trial Magistrate exercised her discretion and awarded her TZS. 30,000,000/= as general damages from the TZS. 100,000,000/= claimed in the Plaint. I find that amount to be reasonable in the circumstances. The fourth ground was that the trial magistrate erred in law and fact by awarding both punitive damages to the tune of 10,0000,000 (Ten Million 30 shillings) and Exemplary damages to the tune of 10,000,000 (Ten Million shillings). In the case of Devconsult International Limited v Entreprises home Tanzania Limited, at page 26, 2012 TZHCcomD 29 (Tanzlii), this Court as per Makaramba, J., stated thus: “The Plaintiff has also made a prayer for an order of award of punitive, exemplary and general damages as this Court may find fit and just to grant. On the prayer for punitive or exemplary damages, it is worth noting that the purpose of punitive or exemplary damages is to punish the defendant for outrageous misconduct and to deter the Defendant and others from similar misbehavior in the future.” The Learned Author Dan B. Dobbs, in Handbook on the Law of Remedies, (1973) at page 204 while citing from Restatement of Torts, (1939) at page 908, defined punitive damages as follows: “Punitive damages, also called exemplary damages, are sums awarded apart from any compensatory or nominal damages, usually because of particularly aggravated misconduct on the part of the defendant. The most generally accepted justifications for 31 punitive damages are to punish and deter certain conduct, particularly willful or malicious.” Exemplary damages are punitive damages rather than compensatory. In this case the trial Magistrate awarded the Respondent TZS. 10 million as exemplary damages and TZS. 10 million as punitive damages for the misconduct of the Appellant. With respect, that was wrong. Exemplary damages are also punitive damages awarded to punish and deter certain conducts, particularly willful or malicious. Punitive damages are intended to punish. What was the typical willful conduct of the Appellant that deserved to be punished in this case? As it was submitted by Mr. Makubi, Learned Advocate for the Respondent, that the Appellant is a big, reputable and well managed bank, with competent senior and experienced personnel including lawyers, whereas the Respondent was a mere vulnerable intern student learning at the Appellant’s office. The Appellant was not expected to act in such a way as using the respondent’s image in its commercial advertisements for its for commercial gains without the respondent’s knowledge and consent to it. During the trial, when DW 1 was being cross examined by Mr. Mafuru, Learned Advocate for the Respondent and re-examined by Mr. Mwaiteleke, Learned Advocate for the Appellant, she testified, and I quote verbatim, that: 32 “Advertisement is important because it creates awareness on different products so that to obtain clients. We aimed to create our brand and awareness in our product. All these aimed to increasing bank income. Eugenia was having two huts first was to learn and he was representing our department and the other hut is for being taken her photos.” The foregoing testimony shows that the Appellant being a dominant party, took advantage of the Respondent’s weaker position by infringing the image rights of the Respondent, using her photographs without her consenting to it, to advertise financial products of the Appellant for the exclusive financial gain of the Appellant. That is a particularly aggravated willful misconduct on the part of the Appellant which justifies the imposition of punitive or exemplary damages so as to punish the Appellant for the outrageous misconduct and to deter the Appellant and others from similar misbehavior in the future. Therefore, I find that the imposition of exemplary damages by the trial court was justified. However, the trial court, having imposed exemplary damages which are also punitive, had no justification to go ahead and impose “punitive damages” of TZS. 10 million for the same misconduct of the Appellant which 33 had already been punished by way of exemplary damages which are also punitive. I will therefore intervene in favour of the Appellant by quashing the award of TZS. 10 million in punitive damages for the misconduct of the Appellant as it amounts to duplication of the same remedy for the same misconduct. Hence this ground of appeal partly succeeds. All in all, the appeal is dismissed save for the last ground of appeal which partly succeeds. The award of TZS. 10 million in punitive damages for the misconduct of the Appellant is hereby quashed. All other orders of the trial Court remain undisturbed. As the Appeal partly succeeds, each party shall bear its own costs in this appeal. It is so ordered. A.H. GONZI JUDGE 07/03/2025 Ruling is delivered virtually in Court this 7th day of March, 2025 in the presence of Mr. Dennis Mhagama, Advocate for the Appellant and Mr. Makubi Kunju, Advocate for the Respondent. 34 A.H. GONZI JUDGE 07/03/2025 35