CIVIL APPEAL NO

IN THE HIGH COURT OF TANZANIA IN THE SUB-REGISTRY OF DAR ES SALAAM ATDAR ES SALAAM CIVIL APPEAL NO. 141 OF 2023 (Originating from Civil Case No, 131 of2022. Judgment and decree delivered on .27^ July 2023, before Hon. R.S. Mushi, P.RM). BETWEEN ROBERT RICHARD BWIRE....,...................................APPELLANT AND TANZANIA PORTLAND CEMENT PUBLIC LIMITED COMPANY...........___ ...............RESPONDENT JUDGMENT Date of the last Order: 23/12/2023 Date of the Judgment: 12/03/2024 DING'OHI J; Robert Richard Bwire, the Appellant herein, successfully sued Tanzania Portland Cement Public Limited Company, the Respondent, In the District Court of Kinondoni (trial court) vide Civil case no. 131 of 2022. The appellants claim against the respondent was to be indemnified TZS 3,000,000,000/= as damages resulting from the Respondent using his image for commercial gains without his consent. The matter was heard in favour of the appellant and it was ordered that the Respondent pay TZS 20,000,000 to the Appellant as damages. Page 1 of18 Dissatisfied by the trial court decision. The appellant preferred the instant appeal on the following grounds; 1. That, the Hon. Resident Magistrate misdirected himself in fact and law by deciding to award little general damages based on extraneous matters of celebrity which were not among the framed issues. 2. That, the Hon. Resident Magistrate misdirected himseif in fact and law by awarding little general damages on the wrong principle without considering and deliberating on evidence of financial statements of the defendant which showed the way the defendant got a huge profit in terms of billions of monies. 3. That, the Hon. Resident Magistrate misdirected himseif in fact and in law by making a decision on award of general.damages, without exercising his discretion judiciously, reasonably and without basing on sound principle i.e. without considering the illegal use of the plaintiff's image for commercial gain. Based on the above grounds of appeal, the Appellant prays that his appeal be allowed with costs. On the other hand, the Respondent was also dissatisfied with the decision of the trial court. She filed an appeal, Civil Appeal No 146 of 2023 Page 2 of 18 (hereinafter to be referred to as the cross-appeal) raising the following six grounds of appeal; 1. The Trial Court erred in law and fact in holding that the Respondent's picture or likeness was displayed elsewhere other than in the Appellant's factory despite the firm admission of the Respondent 2. The Trial Court erred in law and fact in holding that the Appellant Used the Respondent's picture or likeness for commercial gain despite lack of a nexus between the alleged incremental net profit of TZS 3,000,000,000 and the display of the Respondent's picture and the fact that the Appellant used the Respondent's picture in sensitizing the use of alternative carrier bags. 3. The Trial Court erred in law and fact in holding that the Respondent's privacy was infringed in total disregard of the principle of "Reasonable Expectation of Privacy" (REP). 4. The Trial Court erred in law and fact in holding that the Respondent did not consent to his picture being taken or displayed by the Appellant. 5. The Trial Court erred in law arid fact to grant general damages to the tune of TZS 20,000,000 without stating the basis and Page 3 of 18 considering the monthly income ofthe Respondent and the duration within which the alleged picture was displayed within the factory. 6. The Trial Court erred in law and fact in denying the Appellant the right of fair trial by its act ofdisregarding the Appellant's final written submissions in composition of itsjudgment. The Respondent prayed that the cross-appeal be allowed by adjusting the judgment and decree of the trial Court accordingly. At the hearing of the appeal and cross-appeal, the Appellant was represented by Mr. Peter Alfred Bana, the learned advocate, while the Respondent was represented by Mr. Rweikama Rweikiza. Both the appeal and cross-appeal were consolidated and argued simultaneously. Under the circumstances of this matter and for convenient purposes, I will consider the cross-appeal first. Arguing in support of the cross-appeal, Mr. Rweikiza submitted that there is no respondent's witness who testified that those pictures were displayed elsewhere other than at the appellant's factory. He was of the view therefore that the pictures were not displayed outside the factory as alleged. in reply, Mr. Bana submitted that there is nowhere the trial court held that the pictures of the respondent were displayed elsewhere other than Page 4 of 13 inside the factory. He submitted that the testimonies of the PW2, PW3, PW4, and PW5 proved inter alia that pictures were displayed inside the appellant factory and at the gate which could be seen from outside. It is also submitted that the pictures were also displayed in the diaries, notebooks, table calendars, and wall calendars. As regards the second ground of cross-appeal, Mr. Rweikiza raised three sub-issues, namely: whether the Respondent's image was used by the Appellant publicly, Whether the pictures were displayed as a marketing tool and for attracting customers-, and, Whether the Appellant gained economically from the use of complained pictures. Argued on the first sub-issue, the learned advocate submitted that the pictures placed in the diary were not publicly displayed. They were used by the appellant's employees and a few business partners, and thus cannot be said that they were displayed publicly. On the second sub-issue, Mr. Rweikiza stated that the respondent's pictures were not used for marketing purposes, but rather to sensitize the people to use alternative carrier bags in a bid to support the government in its campaign to prohibit the use of plastic bags. Lastly, Mr. Rweikiza submitted, that the respondent did not successfully prove that there is sufficient link between the individual and the exploiting medium to establish that his personality Page 5 :ofl8 was used for the appellants commercial gain. He cited the case of Krouse v C harrysi er Canada Ltd, Et al, 1973 Canlii 574 (ON CA) to cement his submissions. Mr. Rweikiza further submitted that since the appellant (the Respondent in the cross-appeal) was not famous, it was an error for the trial court to grant the damages of Tshs. 20,000,000/=, the amount that was not accounted for. He added that the appellant's pictures have never been attributed to the profit of the company. In reply, Mr. Bana for the respondent in a cross-appeal submitted that in testimonies of the PW2, PW5, DW1, and DW2 it was evident that the appellant displayed the respondent’s image and put commercial words on them. According to him, images were used for commercial purposes. Argued on the third ground of appeal, Mr. Rweikiza submitted that the Violation of personality rights is aggravated. He added that the respondent didn't deny that he consented to his pictures to be taken which was accordingly taken in the appellant's agent shop. According to Mr. Rweikiza, the respondent together with his fellow volunteers joined in a group photo after being given a carrier bag and T-shirts. Under those circumstances, Mr. Rwekiza contends that the respondent consented to his pictures being taken. Page 6 of 18 Based on the foregoing reasons, Mr. Rweikiza prays this court to reappraise the evidence on record and decide correctly that the trial court erred in determining that the Appellant in cross-appeal violated the Respondents right to privacy. In reply, Mr. Bana submitted that the respondent (in cross-appeal) herein agreed his image be taken for fun purposes but he did not consent to be used for commercial purposes nor be displayed anywhere. On the fourth ground of appeal. Mr. Rweikiza began by citing the persuasive Ugandan case of Onang Christopher & 7 others v Roofing Limited & Another, HC of Uganda, at Kampala, Civil Suit No. 139 of 2018, where the court observed: This court does not agree with the plaintiffs7 submission that the consent must be explicit since it has no basis in law. There is no express legislation that requires such consent or authorization to be explicitly in writing like under the Copyright and Neighbouring Right Law”. He argued that the consent need not be in writing unless there is a specific law so dictating. During the hearing, at the trial, it was the testimony of DW2 that the Respondent was informed of the purpose of taking his picture, and therefore he consented. It is his submission that the trial Page 7 of 18 magistrate was misconceived to conclude that consent should always be in writing, in the absence of the law so dictating. He further submitted that as settled in Onang's case (supra), in the absence of the specific law that requires written consent, an oral or implied consent of the Respondent, in this case, sufficed to allow the Respondent in cross-appeal to act in the manner she had acted. In reply, Mr. Bana submitted that even the testimony of DW1 was that the respondent did not allow the appellant in cross-appeal to use his images. Oh the last ground of appeal, Mr. Rweikiza submitted that at the triai court, the Respondent claimed a total of TZS. 3,000,000,000 as general damages. He stressed that while knowing that the awarding of general damages is. at the discretion of the court, such discretion has to be exercised judiciously. Under those circumstances, Mr. Rweikiza had the view that what the Respondent in cross-appeal was required to dp was to aver and prove the facts that form the basis for the award of general damages claimed. It was thus humbly submitted that the trial magistrate erred in law when awarded TZS 20,000,000 as damages without any cogent proof that the Respondent suffered the same. Page 8 of 18 In reply, Mr. Sana cited different authorities including the case of Deogras John Marando Vs Managing Director, Tanzania Beijing liuayuan Security Guard Service Co. Ltd, Civil appeal no. 110 of 2018, High Court of Tanzania at Dar es Salaam (unreported) where on page 19 the court listed the foilowing four things that the plaintiff needs to prove in the case of the breach of personal rights; - i. There must be an intrusion of persona! privacy of the claimant on his identity or image by the respondent and through that intrusion, the respondent suffers either social, psychological, economic, or any kind of injury. ii. There must be appropriation of the claimant's image or celebrity or likeness for the respondent's advantage in any form but in particular for commercial purposes. Hi. There must be a lack of consent from the claimant; and iv. There must be proof that the respondent earned more profit out of the illegal use of the claimant's likeness. To straighten his point, Mr, Sana quoted what my brother, Hon. Mlyambina J., observed in DeograsJohn Marando'case (supra): "There must be a proof that the respondent earned more profit out of the illegal use of the claimant's likeness" he awarded the plaintiff Page 9 of 18 with only Tshs 50,000,000/- (Say Tanzanian Shillings Fifty Million Only) on the reason that the plaintiff failed to prove by evidence that the defendant got more than Tshs 800,000,000/= of what she was claiming as general damages." Under the circumstances, it was Mr. Bana's stance that the Respondents cross-appeal) proved that his image was taken and used without his prior consent. That was the end of submissions of both sides in cross-appeal. In the appeal by ROBERT RICHARD BWIRE, Mr. Bana opted to consolidate all the grounds for the reason that they are interrelated to each other. He submitted that when framing issues, the parties agreed that the celebrity was not among the issues framed. According to him, the appellant claimed general damages following the Respondents act of illegally using his image for commercial purposes without his consent. It was Mr. Bana’s further submission that, it is evident from the record that after the Respondent started to use the Appellants image in 2019, they made a total sale of 348,000,000,000/= (Three Hundred Forty-Eight Billion), Whereby out of those total sales they made a net profit of Tshs 59,000,000,000/= (Say Tanzanian Shillings Fifty-Nine Billion) as per the 2019 financial statement of the Respondent. But, Mr. Bana contended, that the trial court reasonably awarded only 5% Page 10 of 18 of Tshs. 59,000,000,000/= which is equivalent to Tshs 20,000,000/= (Say Tanzanian Shillings Twenty Million Only) after considering the evidence and all circumstances surrounding the case. He referred me to the case of DAUD SAID MFAUME and 7 OTHERS Vs THE REGISTERED TRUSTEES OF CHAMA CHA MAPINDUZI, LAND CASE NO. 08 OF 2021, HIGH COURT AT MOROGORO (Unreported) where it was observed that; "The law is settled that genera! damages are awarded by the trial judge after consideration and deliberation on the evidence on record able to Justify the award" He prayed that this court be pleased to step into the shoes of the trial court, evaluate the entire evidence, and come up with its findings. In reply to what was submitted, Mr. Rweikiza argued that the tort of misappropriation of personality was introduced in a landmark Canadian case of Krouse v. Chrysler Canada Ltd. Et al, 1973 Can LII 574(ON CA). According to him, in that case, it was observed inter alia that, every individual has an exclusive right to market, for financial gain, their personality, image, and name. He added that, according to Krouse's case (Supra) the tort of misappropriation of personality may be invoked when all of the following four elements are met: - Page 11 of 18 1. There must be a sufficient link between the individual and the exploiting medium to establish that the plaintiffs personality was "used" for the defendant's commercial gain. 2. The person is clearly identifiable in the medium used and to their respective community or communities, 3. The person does not consent to the use of their personality; and 4. Damages either emotional or financial losses are proven. He argued that the trial court was duly bound to ensure that all of the four elements, as listed above, were met. It is on that basis, that the learned counsel prayed that this court be pleased to overturn the decision of the trial court. To buttress his position, the learned counsel cited the case of Ivan Felix Teri vs Vietel Tanzania Pic and another, Civil case no. 7 of 2019 (HC Moshi). Having scrutinized the records of the trial court and the well-researched submissions by the counsel for the parties, the issue for determination at this juncture is whether the appeal and cross-appeal, respectively, have merits. Before I embark to determine the merit or otherwise of the appeal and Page 12 of 18 cross-appeal in the manner I have enlisted above, I am mindful that, this is the first appellate court in which I have to re-evaluate the evidence on record afresh and examine my findings. See; Registered Trustees of Holy Spirit Sisters T. vs January Kamili (Civil Appeal no. 193 of 2016) [2018] TZCA 32. In answering the issue raised, I find it pertinent to start determining the first ground of cross-appeal by citing the persuasive decision of this court in the case of Zuberi Seif Kimbuke vs Grace Charles Magoa (Misc. Land Appeal 87 of 2021) [2021] TZHC 736 where Hon. MGEYEKWA, J which made approval in the case of East African Road Services Ltd vs J. S Davis & Co. Ltd [1965] EA 676 at 677. It was observed that; "He who makes an allegation must prove it. It is for the plaintiff to make out a prima facie case against the defendant." On the first ground of cross-appeal, the appellant complained that the trial court erred in law by holding that the Respondents pictures or likeness were displayed elsewhere other than in the Appellant's factory despite the firm admission of the Respondent. My careful perusal of the available court record takes me to the settled view that this ground has no merit. That is because it was not disputed by both parties that the appellant's images were displayed in the Page 13 of 18 respondents factory at a place where everyone could see them. Also, the pictures were displayed in diaries, calendars, and notebooks. The second ground of cross-appeal is the complaint by the appellant that the trial court erred in law and fact when it believed that the Appellant used the Respondents picture or likeness for commercial gain despite the lack of a nexus between the alleged incremental net profit of TZS 3,000,000,000. I am of the view that this ground of appeal intertwined with the second ground of cross-appeal. The records show that the appellant displayed the respondent's image and put commercial words on it. It indicates that the Appellant benefited from using the respondent's image without his prior consent Regarding the third ground of appeal, the appellant in cross-appeal complains that the trial court erred in law and fact in holding that the Respondent's privacy was infringed in total disregard of the principle of "Reasonable Expectation of Privacy" (REP). I have considered that complaint but following the heavier evidence made against the appellant, I find that this ground is without substance. The record is very clear that the respondent's image was taken and there was no contract entered and blessed by the respondent that his images would be used the way it was Page 14 of 18 done. The alleged oral contract was not proved. Section 115 of the Evidence Act Cap 6 R.E 2022 provides for the proof of the oral contract. It provides; "In civil proceedings when any fact is especially within the knowledge of any person, the burden ofproving that fact is upon him" In the case of Martha Mshote vs Edson Emmanuel &. 10 others, Civil Appeal No 121 of 2019 CAT at Dar es Salaam (unreported) it was held that: "... the burden of proof never shifts to the adverse party until the party on who the onus lies discharge the burden." On the fourth and sixth grounds of appeal, the appellant complains that the trial court erred in holding that the Respondent did not consent his picture to being taken or displayed by the Appellant. He further complained that the trial court denied the appellant's fair trial. I have respectively considered those complaints. After a careful recheck of the trial court record, I have found that the appellant in cross-appeal did not prove that there existed an oral contract consenting to the respondent's (in cross-appeal) image being taken for commercial gains. On the fifth ground of appeal, the appellants complain that the trial court erred when it granted general damages to the tune of TZS 20,000,000 Page lS of 18 without stating the basis and considering the monthly income of the Respondent and the duration within which the alleged pictures were displayed within the factory, I have also considered that complaint. It is my settled view that the amount awarded by the trial court is more than reasonable under the circumstances of this case because all conditions for the breach of personality rights have been proven. My brother Mlyambina J in the persuasive case of Deogras John Marando (supra) outlined four conditions that must be proved to establish a breach of personality right. It was held that; "...the Courtis convinced that four conditions must be proved to establish a breach ofpersonality right: One, there must be an intrusion of the personal privacy of the claimant on his identity/image by the respondent, and through such intrusion, the claimant suffers either social, psychological, economic, or any kind of injury; Two, there must be an appropriation of the claimant image or celebrity or likeness for the respondent's advantage in any form but in particular commercial purposes; Three, there must be lack of consent from the claimant, and Four, there must be a proof that the respondent earned more profit out of the Illegal use of the claimant's likeness." Following the foregoing observation, I am of the view that the Respondent Page 16 of 18 in the cross-appeal proved before the trial court all four conditions listed in the cited case above. That being the case, the fifth ground of cross­ appeal collapses. I will now turn to the appeal by ROBERT RICH ARD BWIRE (appellant). The grounds of appeal are based on one complaint that general damage assessed by the trial court at Tshs. 20,000,000/= million were on the low side and should be enhanced to Tshs. 3,000,000,000/= taking into account that the Respondent gained more profits by using his name. The law on general damage in our jurisdiction is well propounded in the case of Tanzania Saruji Cooperation v. African Marble Company (1997) TLR 155. It was held that: "General damages are such as the law will presume to be direct, natural or probable consequence of the act complained of the defendant's wrong doing must, therefore, have been cause, if not the sole, or particularly significant, cause of damage.” The law is now settled that the award of general damages is at the discretion of the court depending on the circumstances of each case. See The Cooper Motor Corporation Ltd vs Moshi/Arusha Occupational Health Service [1990] TLR 96. As I have intimated earlier above, I find that the civil appeal no. 141 of Page 17 of 18 2023 by ROBERT RICHARD BWIRE has no merit. I hereby dismissed it. On the other hand, the civil appeal no. 146 of 2023 by TANZANIA PORTLAND CEMENT PUBLIC LIMITED COMPANY has no merit. Likewise, it is hereby dismissed. The judgment and decree made by the trial court in civil case no. 131 of 2022 stands undisturbed. For the avoidance of doubt, appeals by the parties herein are dismissed in toto. Under the circumstances of this case, there will be no order as to costs. Dated at Dar es Salaam this 12th March 2024. DING'OHI JUDGE 12/03/2024 Page 18 of 18