TANZANIA PORTLAND CEMENT LIMITED V

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB REGISTRY AT DAR ES SALAAM CIVIL APPEAL NO. 85 OF 2023 (Arising from the Judgement of in the Resident Magistrate Court of Dar es Salaam at Kisutu (Hon. E.N. Kyaruzi, PRM) dated 28th April 2023 in Civil Case No. 141 of 2020) _______________________ TANZANIA PORTLAND CEMENT PUBLIC LIMITED COMPANY……………………………………………..APPELLANT VERSUS CHRISTOPHER ELIUD CHAMBO.……….…………….1ST RESPONDENT CHRISTOPHER ELIUD CHAMBO, suing as a next Friend of ELIUD CHRISTOPHER CHAMBO)………..2ND RESPONDENT FRED GERALD ROMAN……………………………..…..3RD RESPONDENT NAKI ELIHAU LOBORA………………………………….4TH RESPONDENT JUDGEMENT Date of last order: 22nd July 2024 Date of Judgement: 23rd August 2024 MTEMBWA, J.: In the Resident Magistrate’s Court of Dar es Salaam at Kisutu (“the trial Court”), the Respondents preferred a suit against the Appellant for a declaratory order that the Appellant breached their rights to privacy and dignity by using their images for economic gain without their consent. Based on such breach, each of the Respondents claimed to be paid the sum of Tanzanian Shillings 1 500,000,000/= as general damage; payment of 25% royalty arising out of the benefit gained as a result of the publication of the images; an order of appointment of the receiver to collect royalties; aggravating damages; interest at Court’s rate of 7% per annum and costs of the suit. The facts, as discerned from the pleadings, are that the Respondents, who claim themselves to be photogenic and or glamorous, found themselves in an intense conflict with the Appellant herein, who used their images to advertise her cement business without their consent. It was established that the images were used in order to attract customers to use the Appellant’s cement product, thereby making profits and gaining other commercial advantages at the expense of Respondents’ images. The facts reveal further that the images were published through the Appellant’s media platforms and post advertisement. Following such publication and or advertisement, the Respondents implored the trial Court to find out that their rights to privacy and or dignity have been extremely curtailed. The Appellant resisted the claim. In her Written Statement of Defense dated 12th August 2020, the Appellant alleged that the Respondents solicited the Appellant to take the photos. It was refuted 2 further that the Appellant has never used the Respondents' images for commercial marketing or product advertisement. In her further defense, the Appellant submitted that the photos were posted on a board within the compound where only staff could see them to raise awareness on the cessation of plastic and reusable durable bags. At the hearing, the following issues were framed: one, whether the Respondents (Plaintiffs by then) are photogenic or glamorous and celebrity personalities; two, whether there is a violation of the Respondents; three, whether the Respondent images were taken and used publicly by the defendant for commercial, business and marketing and economic gain without prior consent; four, whether 2nd Respondent was physically aware of the photographs being taken or published or personally affected by it; and five, whether the Respondents suffered damages and to what reliefs are parties entitled to. The Respondents fronted four witnesses and tendered three exhibits to prove the claim to the required standards. Similarly, the Appellant lined up three witnesses and tendered no exhibit. Having evaluated the evidence adduced, the learned trial Magistrate resolved in favor of the Respondents. He awarded the sum of Tanzanian 3 Shillings 10,000,000/= to each of the Respondents as general damages for infringement of the right to privacy; interest thereof at the Court’s rate of 7% per annum from the date of Judgement to the date of full payment and costs of the suit. Dissatisfied, the Appellant appealed to this Court on the following grounds, and I quote in verbatim; 1. The Resident Magistrate’s Court erred in fact and law in holding that the Appellant used the Respondents' images to promote her business; 2. The Resident Magistrate's Court erred in fact and law in holding that the Appellant did not prove that she sought consent of the Respondents before using their images on the posters and diaries; 3. The Resident Magistrate’s Court erred in fact and law in holding that the Respondents proved within the probability that the Appellant breached the Respondents’ right of privacy; 4. The Resident Magistrate erred in fact and law in holding since the Appellant used the Respondents’ images to promote her business, it is obvious she considered them to be photogenic and the right candidates for promoting her business; 5. The Resident Magistrate Court erred in fact and law in holding that the Appellant took the image of PW4, the minor, without consent of his parent or guardian; 6. The Resident Magistrate Court erred in fact and law in awarding the Respondents TZS 10,000,000 each. 4 Upon being served, the Respondents herein, including one YUSUF FELEMONI MAGAYA, filed the cross-objection (cross- appeal) with the following grounds and I quote in verbatim; 1. That the Trial Court erred in law and in fact by awarding cross- objectors herein with little general damages to the tune of Tshs 10,000,000= (Say Tanzanian Ten Million Shillings Only) as general damages without considering the huge profits made by the Respondent herein in terms of billions of money from sales of Twiga Cement and Twiga Extra Cement products owned by the Respondent. 2. That, the Trial Court erred in law and in fact which led to apply a wrong principle I assumption in awarding a very minimum general damages to the cross objectors' without considering the major contribution done by the cross objectors to the respondent's business vide promotional items used for commercial gain which included the image/picture of the cross objectors without their consent. 3. That, the Trial Court erred in law and in fact for failure to quantify general damages judiciously. 4. That the trial court erred in law and facts for failure to hold that the 5th plaintiff (the 5th appellant herein) was not entitled to get his remedies on the reason that he failed to testify before the court, regardless that there was sufficient evidence on records basing on Common claim and on the same cause of action which could lead to the 5th plaintiff to be awarded like the 1st, 2nd, 3rd, and 4th plaintiffs. However, having scrutinized the grounds of appeal (in the main and cross-appeal), I realized that the sixth ground of appeal in the 5 main appeal resembles the first, second, and third grounds of appeal in the cross-appeal. In that respect, I will discuss and/or determine them together in the main appeal. For clarity, the first, second, third, and fourth grounds of appeal in the main appeal will be discussed and or determined separately. In contrast, the sixth grounds of appeal will be addressed in line with the first, second, and third grounds of appeal in cross-appeal. The fourth ground of appeal in the cross- appeal will be argued separately. During the discussion however, I realized that the Respondents unjustifiably never replied to the sixth ground of appeal. Instead, they traversed to argue forcefully the fifth ground of appeal, which the Appellant’s counsel dropped. In that respect, consolidating the sixth ground of appeal in the main appeal and the first, second, and third grounds of appeal in cross-appeal is impossible. Initially, this matter was presided over by Hon. Kakolaki, J, who has been reported to have been transferred to another duty station. It has been, therefore, re-assigned to me for final determination. When this matter was called on for orders on 7th May 2024, the Appellant was represented by Mr. Rwekamwa Rweikiza, the learned counsel, while Mr. Benedict Muta, the learned counsel, represented the 6 Respondents. By consent, parties agreed to argue both this Appeal and cross objection by way of written submissions. Having passed through the records, I am satisfied that parties adhered to the agreed schedule, which I personally recommend. As prefaced above, there is an appeal and cross objection. This Judgement will, therefore, discuss both the grounds of appeal as filed by the Appellant and the cross objection as filed by the Respondents herein, including one YUSUF FELEMONI MAGAYA, who shall be referred to in this Judgement as the fifth cross objector or cross- appellant. I will first discuss the arguments for and against the Memorandum of Appeal, and after that, I shall look into the arguments for and against the cross objection. Staging the floor, Mr. Rweikiza prefaced what had transpired before. He also informed this Court that the five grounds of appeal would be argued independently while the fifth one is dropped. He also opted to discuss the tort of misappropriation of personality. Of interest is the elements provable when the said tort is called in question in view of the Canadian case of Krouse vs. Chrysler Canada Ltd. Et al., 1973 CanLII 574 (ON CA). These are; one, there must be an element of commercial exploitation of a person’s 7 personality; two, there must be a sufficient link between the individual and the exploiting medium to establish that the plaintiff’s personality was “used” for the defendant’s commercial gain; three, the person is clearly identifiable in the medium used and to their respective community or communities; four, the person does not consent to the use of her or his personality; and five, damages, either emotional or financial losses, are proven. Arguing on the first ground of appeal, Mr. Rweikiza submitted that by relying on Exhibits PE2 and P3, the trial Magistrate was satisfied that the Appellant used the Respondents’ images to promote her business. He refuted the findings and added that for the images to be used for promotion, they must be displayed publicly, displayed as a marketing tool, and there should be proof that the defendant (Appellant) gained economically. Based on that, he formulated three issues to wit; one. whether the Respondents’ images were used by the Appellant publicly; two, whether the pictures were displayed as a marketing tool for attracting customers; and three, whether the Appellant gained economically from the use of pictures subject to this appeal. 8 Regarding the first issue, Mr. Rweikiza submitted that it is so apparent, from the evidence on the record, that the pictures were not publicly used. The group picture on a poster was placed inside the factory close to the entrance. Exhibit P3 clearly shows that the poster was within the factory compound, as revealed by the presence of the Ashok trees and the cylindrical palisade hedge joined with chains. He relied on the sworn testimonies of DW2, who testified that Exhibit PE2 and P3 were placed on the walkway at the entrance gate, the evidence which was corroborated by the oral evidence of PW1 on page 27 of the typed proceedings. He cited the Black’s Law Dictionary, Tenth Edition, on page 1422, where “public” means "a thing open or available for all to use, share, or enjoy”. Regarding the picture in a diary, Mr. Rweikiza argued that the trial Magistrate misdirected herself to decide that the pictures in the diary were publicly displayed. DW2 testified uncontrovertibly that the diaries are printed yearly solely for the employees' use. That, the testimony of DW2 was confirmed by PW1 on cross-examination, where he asserted that he got Exhibit PE2 (a Diary) from one of the employees of Twiga. He was of the view that the picture placed in the 9 diaries used by the Appellant’s employees cannot be said to have been displayed publicly. Regarding the second sub-issue on whether the pictures were used for marketing the Appellant’s products, the learned counsel argued that the photographs were not used to advertise the Appellant's products to the public. He added that advertisement entails commercial solicitation whereby an item of published or transmitted matter is made to attract clients or customers. He relied on the testimony of DW2, who testified that the purpose of placing the poster was to sensitize people to use reusable non-plastic bags and not otherwise. It was argued further that the caption “TUNAWAJALI WATEJA WETU,” meaning “WE CARE OUR CUSTOMERS,” did not mean solicitation of new customers. Arguing on the third sub-issue, Mr. Rweikiza submitted that the Appellant did not use the pictures for economic gain. He relied on the elements of a tort of misappropriation of personality cited in the case of Krouse vs. Chrysler Canada (supra) as indicated above. I shall not re-discuss them here. He cited the case of Ivanna Felix Teri vs. Vietell Tanzania PLC and Another, (Civil Case No.7 of 2021) [2022] TZHC 903 (7 March 2022) where it was observed that; 10 Moreover, even if we assume that the copyright of the photos is established, still the plaintiff’s claim of Tsh 800,000,000/- as specific damages cannot stand since during trial, the Respondent merely told the court that she deserves Tshs 800,000,000 without specifically pleading how such amount was earned by the Appellant from those pictures and how economic rights have been infringed Strengthening the argument, Mr. Rweikiza cited the Ugandan case of Asege Winnie vs. Opportunity (U) Ltd & Another (High Court Civil Suit No. 756 of 2013) [2016] UGCommC 39 (2 May 2016), where the damages were awarded because the defendant’s Bank used the plaintiff’s image to promote a specific product, Agro Save Account and given that the Plaintiff was a well-known commercial farmer in Uganda. The Court ordered the Defendant to share 5% of the royalty with the Plaintiff because there was a sufficient link between the earnings in the Agro Save Account and the infringed personality of the Plaintiff. Based on the above, Mr. Rweikiza observed that throughout the pleadings and testimonies, the Respondents didn’t specifically account for how the Appellant earned any amount as a result of using the Respondent’s pictures in a poster installed within the Appellant's factory or in the diaries meant for internal use by the Appellant’s staff. 11 Further, the Respondents didn’t testify on how they were emotionally or psychologically harmed to qualify for the award of any quantum of damages. In the final analysis, the learned counsel implored this Court to reverse the Judgement of the trial Court. Arguing on the second ground of appeal on whether the Respondents consented to their images to be used by the Appellant, the learned counsel cited the Ugandan case of Onang Christopher & 7 others vs. Roofing Limited & Another, (Civil Suit No. 139 of 2018) [2022] UGHCCD 123 (22 August 2022), where it was observed that consent needs not be expressly in writing. He relied on the testimony of DW2, who testified that the participants in a group photo, including the Respondents, consented orally to the taking of their images and subsequent use of the images in environmental campaigns, inspiring the use of alternative carrier bags. In addition, it was argued that at the scene, as gleaned from the proceedings, the Respondents, except the minor, requested to join a photo and be given alternative carrier bags and T-shirts. DW2 explained to the adult Respondents the purpose of the picture and the possibility of using the same to sensitize the use of alternative carrier bags. The adult Respondents consented orally and that the Appellant 12 gained nothing commercially. He believed that oral or implied consent suffices to allow the Appellant to act in such a manner as she did. On the third ground of appeal, Mr. Rweikiza argued that the trial Magistrate determined the issue of whether there was a violation of the Respondents’ personality negatively in total contravention of the holding in the case of Deogratias John Marando vs John Managing Director, Tanzania Beijing Huayuan Security Guard Service Company Limited, Civil Appeal No. 110 of 2018) [2020] TZHC 1992 (27 March 2020). Stretching further, the learned counsel observed that the right of personality is one of the fundamental and inalienable rights inherent to human being. Personality rights are defined in principle as the rights that ensure the protection of the attributes of the personality (privacy, right to one’s image or voice) and guarantee one’s moral integrity. The rights of personality include the right to respect the dignity of the other person which guarantees his physical integrity (principle of free disposal of the human body, prohibition of inhuman and degrading treatments, etc.). Whether picture-taking violates the photo subject's privacy rights depends on that person's reasonable expectation of privacy. 13 Based on the above construction, the learned counsel argued that the trial Magistrate was supposed to determine whether the Respondents consented to the taking of the images. He added further that none of the Respondents testified to have not agreed to the taking of the picture. It was not disputed by the Respondents that the photographs were taken in the daylight at DW1’s shop. DW1 testified that the Appellant’s officers came to her cement shop at Wazo Bwawani and requested to take her pictures after giving her a T-shirt and some non-plastic bags labeled TWIGA. She further testified that while the Appellant’s officers offered to take her photos, her neighbors volunteered to join her, and she could not chase them. PW1, PW2, and PW3 did not dispute the DW1’s testimony that they volunteered to a group photo. They only alleged that they didn’t know that their pictures would be used for advertisement. Mr. Rweikiza referred this Court to the testimony of PW4 (a minor), who testified that the pictures were taken at his father’s workplace. His father called him for the picture. He resolved thus that PW4’s testimony is a revelation that his father, as a guardian, consented to the Appellant’s officer to take photos. He implored this Court to make an inference of the consent from the posture of the 14 Respondents in the pictures tendered as exhibits in evidence. More so, the pictures convey abstract and complex concepts such as facial expressions. Looking at the demeanor of the Respondents in the picture clearly reveals that the Respondents were not coerced to participate in taking a group photo. The learned counsel insisted on the aspect of REP (reasonable expectation of privacy) in determining the violation of personality when the pictures were taken. The reasonable expectation of privacy is an element of privacy law that determines in which places and activities a person has a legal right to privacy or “the right to be left alone." The expectation of privacy isn't absolute, but it must also be "reasonable." For instance, a person dressed in a night dress at his home has more REP than the same person dressed in official attire at the workplace or posing at a shopping mall, Mr. Rweikiza observed. The learned counsel also referred this Court to the evidence in the record, which tells it all that the Respondents were at their workplace, at the neighborhood with DW1’s business. PW4, a minor, cemented the evidence when he said the picture was taken at his father’s workplace. As postulated above and as revealed in oral evidence, the Respondents’ REP was negligible given the fact that they were at their 15 workplaces and that they volunteered to take the photos. Moreover, their demeanor depicted from the posture in the picture, the subject of the claim, shows that the Respondents were not threatened before the photographs were taken. On the fourth ground of appeal on whether the Respondents were photogenic to qualify as the right candidates for promoting the Appellant’s business, Mr. Rweikiza argued that the trial magistrate erred in determining that the Appellant by the act of displaying the Respondents’ pictures, she considered them to be photogenic. The Magistrate held correctly that none of the Respondents proved to be a celebrity, but decided wrongly to detach being photogenic from celebrity. In an ideal situation, celebrities are the right candidates for promoting businesses. He argued further that celebrity is a condition of fame and broad public recognition of a person or group due to the attention given to them by mass media. It is attained from having great wealth, their participation in sports or the entertainment industry, their position as political figures, or even from their connection to another celebrity. Based on that, the learned counsel faulted the trial Court’s holding that the Respondents were photogenic merely because their pictures 16 were displayed. It was further submitted that a subject should be a famous and well-known person within the area for a business to gain an economic advantage from displaying the images. Arguing on the sixth ground of appeal, Mr. Rweikiza submitted that the Respondents at the trial Court claimed Tanzanian Shillings 500,000,000/= each as general damages. The trial Court awarded them the sum of Tanzanian Shillings 10,000,000/= each. He was not amused at all by an award. He added that the awarding of general damages solely depends on the Court's discretion, though such discretion must be exercised judiciously. As such, general damages should only be averred by the Respondents that they suffered such damages, but quantification of the same should be left within the monopoly of the Court. By reciting the case of Chrysler Canada (supra), the learned counsel observed that for Respondents to qualify for the award of any quantum of damages in respect of the tort of misappropriation of personality, the elements stated in the cited case (which I stated earlier) should be proved. He observed further that the Respondents did not prove all of the required elements for them to qualify for the 17 award of Tanzanian Shillings 10,000,000/= each and it was wrong for the trial Court to exercise such discretion to award the stated sum. Based on the foregoing, the learned counsel beseeched this Court to allow the appeal with costs. In response, Mr. Bana notified this Court that the use of the words “Twiga Cement, Wazo Hill Co” and “Twiga Extra” shall mean and or refer to the Appellant herein namely “Tanzania Portland Cement Public Limited”. In response to the first ground of appeal, Mr. Bana argued that there is nowhere the trial Court erred to hold that the Respondent’s pictures were used to promote her business. He argued further that the Appellant displayed the Respondents’ pictures in different categories, places, and locations. Some photographs were displayed via big posters placed inside and outside the factory owned by the Appellant. He referred this Court to Exhibits PE2 and PE3, which indicate that the images were placed on big posters at the Appellant’s factory, and some were placed outside the factory without consent from the Respondents. The learned counsel also observed that the words like“tunawajali wateja wetu na Twiga Cement”, “nguvu zaidi, hakikisho 18 Zaidi” on the posters and diaries meant nothing but promoting the business of selling cement products to the Appellant’s customers. He cited the case of Deogras John Marando vs. Managing director, Tanzania Beijing Huayuan Security Guard Services Co. Limited, Civil Appeal No. 110 of 2018, High Court of Tanzania at Dar es Salaam, where it was observed that since the Plaintiff prayed for general damages to the tune of Tanzanian Shillings 800,000/= but failed to prove that the defendant got business profit, then he awarded the Plaintiff with only Tanzanian Shillings 50,000,000/=. He was of the view that the trial Magistrate erred in awarding to the Respondents herein the sum of Tanzanian Shillings 10,000,000/= as general damages instead of awarding them the reasonable quantum amount of damages. He implored this Court to award the Respondents the sum of Tanzanian Shillings 50,000,000/= each as general damages (including the 5th Respondent). To fortify further, Mr. Bana also cited the case of Security Group (T) Ltd vs. Samson Yakobo & 10 Others, Civil Appeal No. 76 of 2016, Court of Appeal of Tanzania at Dar es Salaam (unreported), where it was stated at pages 16 and 17 that, “the respondents had a common claim and in such a situation, evidence 19 need not be adduced by all of them. Their complaint was against the appellant's breach of the law in terminating them. It will be sufficient if the complained of breach is proved by the evidence of some of them”. Based on that, Mr. Bana submitted that the Respondents had a common claim at the trial Court and, as such, it was wrong not to award general damages to the 5th Respondent. He further cited the case of Robert Richard Bwire vs. Tanzania Portland Cement Public Limited Company, Civil Appeal No. 141 of 2023, High Court at Dar es Salaam on the same principles. He implored this Court to dismiss the first ground of appeal. Arguing on the second ground of appeal, Mr. Bana submitted that the Appellant never sought any consent from the Respondents before she used their images for advertisements. He added that the Appellant never tendered any proof evidencing that there was consent from the Respondent to use their images for advertisement. That whatever was done by the Appellant herein was made at her own peril for commercial gain. Mr. Bana referred this Court to the testimony of DW2, who testified that, before taking the Respondents’ picture, they informed them of the very purpose of the exercise. He narrated that the 20 purpose was connected to sensitization of the use of alternative carrier bags. He considered the testimony to be an afterthought. He noted further that the words on the posters and diaries that “tunawajali wateja wetu na Twiga Cement”, “nguvu zaidi, hakikisho Zaidi” had no correlation with the alleged sensitization exercise. He insisted that the Respondents’ pictures were used commercially to promote the Appellant’s business. He referred to the words used in the posters to be tunawajali watu wetu, Imara Zaidi, hakikisho zaidi, twiga cement, twiga cement extra, and build stronger with twiga cement, which do not refer to the alleged sensitization. He beseeched this Court to find out that the second ground of appeal is devoid of merit. Arguing in response to the third ground of appeal, Mr. Bana submitted that it is true that the Respondents’ privacies were infringed. The Respondent admitted having taken the picture for fun (just friendly) and not otherwise. In their evidence, the Respondents testified that they never consented to the Appellant using their pictures for commercial purposes or displaying them anywhere. Mr. Bwana stressed that the Appellant made considerable profits to the detriment of the Respondents’ image while using their pictures 21 for promotional items like big posters and diaries. The big posters placed inside and outside the factory were all publicly displaced, and some diaries that used the Respondents’ images were all public documents. That the same was done without consent from the Respondents. It is only the Appellant who benefited from the use of the Respondents’ images. Stretching further, Mr. Bana recited the case of Deogras John Marando (supra) where the case of Rajinikanth Shivaji Rao Gaikwad vs. Varsha Production, 2015 (62) PTC 351 (Madras) was cited and it was observed that; The right to publicity has evolved from the right of privacy and can inhere only an individual or in any indicia of an individual's personality like his name, personality trait, signature, voice etc... The right to publicity vests in an individual and he alone is entitled to profit from it. The learned counsel also continued to consider the cited case of Deogras John Marando (supra) where this Court quoted an Indian case of R. Raja Gopal vs. State of Tamil Nadu, 1995 AIR 264 the Supreme Court of India where two aspects of the right to privacy were observed, to wit; the general law of privacy which affords a tort action for damages resulting from an unlawful invasion 22 of privacy and the constitutional recognition given to the right to privacy which protects personal privacy against unlawful governmental invasion. Having submitted in length on the import of Deogras John Marando (supra), Mr. Bana reminded this Court of its noble duty to step into the shoes of the trial Court and do what ought to have been done. He cited the case of DPP vs. Osephat Joseph Mushi & Another, Criminal Appeal No. 471 of 2019 Court of Appeal of Tanzania at Mbeya where it was observed that the first appellate Court is supposed to step into the shoes of the trial Court and do what ought to have been done. He added that the Court may interfere with the general damages awarded if only the same was based on the wrong principle of the law. He cited the case of M/S Sakoe N. Mwalo Co. LTD vs. M/S Lukumburu Investment Co. LTD, Civil Appeal No. 148 of 2019, High Court of Tanzania at Dar es Salaam. That was not all in respect to the case of Deogras John Marando (supra). The learned counsel observed further that to prove personal infringement, a party must demonstrate the following, that is; - 23 1. There must be an intrusion of personal 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 2. There must be an appropriation of the claimant's image or celebrity or likeness for the Respondent’s advantage in any form but in particular for commercial purposes. 3. There must be a lack of consent from the claimant. 4. There must be proof that the Respondent earned more profit out of the illegal use of the claimant’s likeness. Mr. Bana repeatedly insisted that the Respondents proved their case to the required standards of probabilities that their images were used without consent for commercial gain, even though no evidence was tendered to justify that the Appellant earned a big profit from the said tort. He was not, however, satisfied by an award of Tanzanian Shillings 10,000,000/= as general damages. He implored this Court to award Tanzanian shillings 500,000,000/= to each of the Respondents as general damages because the Appellant earned more profits in billions (Tanzanian Shillings 59,000,000,000/=) from the illegal use of the plaintiff’s image. On the fourth ground of appeal, Mr. Bana argued that the issue related to whether the Respondents were photogenic rests on the Respondents themselves. That it is the Appellant who used their 24 images for commercial gain. The Respondents had no burden of proving themselves to be photogenic for something they did not consent to be used as a commercial tool in the Appellant’s advertisements. He added that there is nowhere the Respondents consented to use their images in the Appellant’s commercial advertisement. He implored this Court to dismiss the fourth ground of appeal. On the fifth ground of appeal, Mr. Bana argued that PW4 was called by his father to take a group picture together with other colleagues. He, however, submitted that taking a picture is one thing and using the said picture for commercial gain is another. Having taken the picture, the Appellant later used the same to promote her business without consent from the Respondents, including PW4, who is the minor. He added that, by the way, a minor cannot consent nor enter into agreements. He beseeched this Court to discover that the fifth ground of appeal is without merit. However, I noted that Mr. Bana had nothing substantial but a wastege of time because the Appellant’s counsel dropped the fifth ground of appeal. There was no need, therefore, to argue it. 25 Based on the foregoing, Mr. Bana implored this Court to dismiss this Appeal with costs. It was regrettable that the Appellant’s Counsel never rejoined. As said before, the Respondents’ counsel never replied to the sixth ground of appeal, which would have included the arguments in the cross-appeal. As such, I am constrained to look into the grounds of appeal in cross-appeal separately. In the cross-appeal, Mr. Bana combined both grounds of appeal and argued them together. Having prefaced on what transpired, he argued that the trial Court awarded each cross-objector the sum of Tanzanian Shillings 10,000,000/=. However, after the delivery of the Judgement, they came to realize that, as per the financial statements for the financial year 2019 and 2020, the Appellant (the Respondent in cross-appeal) got Tanzanian Shillings 59,000,000,000/= (Say Tanzanian fifty-nine Billion only) as net profit. He submitted that the said financial statements were rejected by the appellate Court. Mr. Bana continued to argue that, considering that the defendant is a vast public limited company with more extensive sales of cement all over the country, he expected the trial magistrate to award a reasonable sum as general damages. He cited ten cases of 26 DPP vs. Osephat Josepth Mushi (supra) and implored this Court to step into the shoes of the trial Court and re-evaluate the entire evidence. The learned counsel cited the case of Deogras John Marando (supra), where it was observed that to prove the breach of personal infringement, the claimant must demonstrate the following that is; one, there must be an intrusion of personal 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; two, there must be an appropriation of the claimant's image or celebrity or likeness for the Respondent’s advantage in any form but in particular for commercial purposes; three, there must be a lack of consent from the claimant; and four there must be proof that the Respondent earned more profit out of the illegal use of the claimant’s likeness. Mr. Bana also referred this Court to the decision of M/S Sakoe N. Mwalo Co. Limited vs. M/S Lukumbulu Investment Co. Limited, Civil Appeal No. 148 of 2019, High Court of Tanzanian at Dar es Salaam where it was observed that the award of the general damaged is the discretion of the court, therefore it 27 does not require to be pleaded and proved therein. However, that discretion must be exercised judiciously, reasonably, and based on sound legal principles, not arbitrarily. It was observed further that in the case of Deogras John Marando (supra), the High Court awarded the claimant the sum of Tanzanian Shillings 50,000,000/= only on the reasons that the plaintiff failed to prove whether the defendant earned profit vide the use of his picture. Similarly, in the case of Robert Richard Bwire vs. Tanzania Portland Cement Public Limited Company, Civil appeal No. 141 of 2023, High Court of Tanzania at Dar es Salaam, the Court awarded the sum of Tanzanian Shillings 20,000,000/= as general damages. He insisted that, although the cross appellants failed to tender the financial statements, the Respondent gained Tanzanian Shillings 59,000,000,000/= as net profit. He faulted the trial Court for not awarding a reasonable sum of money as general damages. Mr. Bana also complained about the trial Court's failure to award general damages to the fifth cross-objector because he did not appear during the hearing. He was not amused as the cross-objectors shared a common interest based on the same evidence. He cited the case of 28 Security Group (T) Limited vs. Samson Yakobo & 10 Others, Civil Appeal No. 76 of 2016, Court of Appeal of Tanzania at Dar es Salaam, where it was observed that where there several plaintiffs suing with a common claim based on the same evidence, it does not need for all of them to prove the claim, and evidence need not adduced by all of them. Based on the above arguments and cited authorities, Mr. Bana implored this Court to set aside the trial court's award of general damages and increase the prize to more than Tanzanian shillings 10,000,000/= to each cross objector. In response to the cross objection or appeal, Mr. Rweikiza was on duty. He considered the cross objectors’ submissions in chief worthless, which cannot convince this Court to raise the sum of money awarded as general damages. He submitted that even if the Respondent earned Tanzanian Shillings 59,000,000,000/= as net profit, general damages could not be assessed based on the profit earned. That to be awarded general damages in tort relating to misappropriation of personality, the claimant should prove his emotional sufferance due to the wrong done to him or her. He referred this Court to the cases of Krouse vs. Chrysler Canada Ltd, 29 Et al., 1973 CanLII 574 (ON CA) and Deogratias John Marando vs. the Managing Director, Tanzania Beijing Huayuan Security Guard Service Company Limited, Civil Appeal No. 110 of 2018, [2020] TZHC 1992 (27 March 2020). He also submitted that general damages are awarded at the court's discretion, considering the evidence on record and all circumstances of the case and having satisfied that the claimant has suffered materially or mentally following the unlawful act. He cited the cases of AMI Tanzania Limited vs. Prosper Joseph Msele, Civil Appeal No. 159 of 2020, [2021] TZCA 668 (11 November 2021), Jafari Hussein Sinai and Another vs. Silver General Distributors Limited, Civil Appeal No. 271 of 2017, [2019] TZCA 11 (01 March 2019); Alfred Fundi vs. Geled Mango and Two Others, Civil Appeal No. 49 of 2017, [2019] TZCA 50 (05 April 2019), Trade Union Congress of Tanzania (TUCTA) v. Engineering Systems Consultants Ltd, Civil Appeal No. 51 of 2016, [202] TZCA 251 (26 May 2020) and Tanzania Saruji Corporation vs. African Marble Company Limited [2004] T.L.R 155. 30 As to whether it was wrong for not awarding general damages to the fifth cross Appellant, Mr. Rweikiza submitted that the trial Court was right to take such a recourse because he failed to appear to prove how he suffered, either mentally or financially, as a result of the wrong done by the Respondent. He insisted that the claimant must prove how he or she suffered either mentally or materially as a result of the wrong done to him or her. He stated further that tortious claims on infringement of personality involve personal feelings or emotions and thus are not homogeneous to everyone. He cited the case of Mulbadaw Village Council and 67 others vs NAFCO (1984) TLR 15 (HC), where the Court refused to grant compensation to the parties who failed to appear to defend their case because their claims were heterogeneous. Based on the above, Mr. Rweikiza implored this Court to dismiss the grounds of appeal in cross objection. In his brief rejoinder, Mr. Bana submitted that since the Respondent in cross-appeal has conceded to gain Tanzanian Shillings 59,000,000,000/= as net profit, being the first appellate Court, has the mandate to re-evaluate the evidence on record and come up with her findings by increasing the general damages awarded to the cross 31 objectors. He maintained that in Deogras John Marando (supra), the Court granted the claimant the sum of Tanzanian Shillings 50,000,000/= as general damages because he failed to prove the net profit gained. He considered a little award of Tanzanian Shillings 10,000,000/= to the cross objectors a serious misdirection by the trial Court. He recited the case of Robert Richard Bwire (supra), where the Court also awarded the sum of Tanzanian Shillings 20,000,000/= as general damages. In his final rejoinder, Mr. Bana implored this Court to increase the awarded sum as general damages from Tanzanian shillings 10,000,000/= to Tanzanian Shillings 50,000,000/=. Lastly, he beseeched this Court to allow the cross objection with costs arising from this Appeal and the trial Court. Having dispassionately considered the rival arguments by the parties, the question is whether the appeal and cross-objections are meritorious considering the evidence available on records. Indeed, as the first appellate Court, it has to re-evaluate the evidence on record, put it under critical scrutiny, and come to its own conclusion (see Mapambano Michael @ Mayanga vs. Republic, Criminal Appeal No. 258 of 2015). 32 While guided by the above principle, it is also a trite law that whoever alleges the existence of any fact bears the duty to prove it. This principle is gathered from sections 110, 112, and 115 of the Evidence Act, Cap 6 RE 2019, and judicial precedents, including the case of Manager NBC Tarime vs. Enock M. Chacha [1993] TLR 228. According to the records, both Respondents/cross-objectors complained about the Appellant's use of their images in her advertisement without their consent. It was alleged that the Appellant used the photos on the posters (exhibit PE2) and Diaries (Exhibit PE3). Having realized that the Appellant was using their images to advertise her cement product, the Respondents/cross-objectors, through their advocate, wrote a letter demanding compensation without success (Exhibit PE1). It was established by evidence that the poster with the Respondents’ images was placed at the Appellant’s entrance. The testimonies show that the Respondents considered themselves to be photogenic and or glamorous, which is why the Appellant used their images to advertise her cement product. However, as per records, the 5th Respondent did not testify and thus was not awarded the sum of money as general damages. 33 It was established by DW1, one Naza Eliakunda, who used to sell cement products from the Appellant’s factory in July 2018 that during the period, the two Appellant’s officers came to her shop and distributed T-shirts and bags. Later, they requested to take pictures, and as a businesswoman, she agreed. There, the Respondents, who were neighbours, joined the group photo. During the cross- examination, DW1 conceded that both group photo participants did not know where the images would be placed. She also admitted to appearing on Exhibit P3. DW2, Issack P. Massawe testified as one of the appellant's employees. He testified that in July 2018, he was involved in the program discouraging plastic bag use. They were, therefore, distributing substituted bags (non-plastic bags) to their customers. He conceded that the bags also were supplied to DW1. Having done that, DW1 was asked to take a picture, and she agreed. Other people around her office were interested and thus joined the group photo. He added that others in the picture joined DW1 for a picture and consented to that effect. As per him, taking pictures after distributing the bags and posting them for sensitization is usual. 34 DW2 one Issack Massawe also testified that, having taken the photos, they placed them on the walkway. Similarly, he conceded that the pictures on Exhibit PE2 and P3 were placed on the Appellant’s entrance gate of the factory, and even the images on the diary were part of a sensitization program. However, the diaries were only for internal use. On cross-examination, he conceded that looking at Exhibits PE2 and P3, one may not understand that it was for the non- use of the plastic bags sensitization program. He testified that in order to see the poster, one needed to be inside the factory, and the diaries were distributed to employees only. DW3 one Imani Bakari Yusuph conceded to have taken the pictures as exhibited from Exhibits PE2 and P3. DW1 was asked to take a photo on the material day, and she agreed. Other people around were interested and so joined the group photo. Having taken the pictures, he forwarded them to DW2. On cross-examination, he conceded that DW2 did not inform him of the purpose of taking the picture. He also acknowledged that the images he captured were on a poster. Having evaluated the evidence adduced, the learned trial Magistrate resolved in favor of the Respondents. He awarded the sum 35 of Tanzanian Shillings 10,000,000/= to each of the Respondents as general damages for infringement of the right to privacy; interest thereof at the Court’s rate of 7% per annum from the date of Judgement to the date of full payment and costs of the suit. However, the award did not include the 5th cross-objector. From what I have gathered herein above, the following are not in dispute: one, that the Appellant’s employees captured the Respondents’ pictures; two, that the same photographs were used in the Appellant’s posters and diaries, exhibit PE2 and P3, respectively; and three, that the Respondents/cross objectors consented to the group photo. What is in dispute, therefore, is whether; one, the Respondents agreed to the Appellant's use of the said pictures in her posters and or diaries, and two, whether the use was for financial benefit. I shall come back to these issues in the due course. Unfortunately, in society today, “virtual kidnapping” is not uncommon. In the digital age, where cameras and smartphones can take photographs and videos anytime and anywhere, defining the boundaries of an individual’s privacy rights over the use of his or her image by others is increasingly important. In this situation, subject to appropriate constraints, an individual should be able to control the use 36 of his or her image by determining when, to whom, and to what extent his or her image is available for broad public consumption. In Australia, for instance, there have been several developments regarding the tort of misappropriation of personality, which refers to the unauthorized use of a person's name or likeness to sell one's goods or services. False association or endorsement is actionable via the law of passing off, not a separate law of "right of personality". In Henderson vs. Radio Corp Pty Ltd, (1960) 60 SR(NSW) 576, [1969] RPC 218, the Plaintiffs were ballroom dancers. They sued the defendant in passing off, alleging it wrongfully published their photographs on the cover of a gramophone record entitled “Strictly for Dancing: Vol. 1”. An injunction was granted on the ground that the use suggested the plaintiffs recommended or approved of the defendant's goods, or had some connection with the goods. In South Africa, personality rights are protected under the laws of delict and the Bill of Rights, which also provides freedom of expression and association. After much uncertainty concerning the recognition of image rights in South Africa, the Supreme Court of Appeal provided clarity in the landmark case of Grütter vs. Lombard 37 and Another (628/05) [2007] ZASCA 2; [2007]. In South Africa, a person's right to identity is violated if the attributes of that person are used without permission in a way that cannot be reconciled with the true image of that person. Apart from the unauthorized use of a person's image, this kind of infringement also entails some kind of misrepresentation concerning the individual, such as that the individual approves or endorses a particular product or service. Secondly, the right to identity is violated if the attributes of a person are used without authorization by another person for commercial gain. Apart from the unauthorized use of the individual's image, such use also primarily entails a commercial motive exclusively aimed at promoting a service or product or soliciting clients or customers. According to Nikki Chamberlain, a lecturer at the University of Auckland Law School, in his article titled “Misappropriation of personality: A case for common law identity protection” a tort of misappropriation of personality would extend to personal privacy protection to all persons: not just those in trade and with goodwill associated with their image because of fame or the like. It also provides a remedy for harms that are purely dignitary in nature. In this respect, the doctrinal underpinnings of passing off is best left for 38 remedying commercial harms while a privacy tort should be adopted to remedy dignitary harms that do not occur ‘in trade’. I entirely subscribe to this position. According to him, the tort of misappropriation of personality has four elements as derived from jurisprudence in the United States of America. The elements are: (a) A plaintiff must prove that the defendant has appropriated an aspect of the plaintiff’s personality (identity, image, name or likeness); (b) The defendant’s appropriation must be without the consent of the plaintiff; (c) The defendant must have appropriated the plaintiff’s personality (identity, image, name, or likeness) for his or her advantage and; (d) The appropriation (publication or use) must be highly offensive to the objectively reasonable person. In Tanzania, the right to privacy is guaranteed under article 16(1) of the Constitution of the United Republic of Tanzania of 1977 as amended which provides that every person is entitled to respect and protection of his person of his own person, his family and of his matrimonial life, and respect personal and protection of his residence and private communications. Tanzania also is a signatory to 39 the International Covenant on Civil and Political Rights (United Nations General Assembly Resolution 2200 A of 16th December 1966) which provides that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. In the case of Deogras John Marando (supra), this Court had this to say at page 11 of the typed Judgement; It is the finding of this Court, therefore, that the Appellant's image deserves protection of the law as it concerns his privacy. The respondent’s act of using the appellants image (likeness)of photograph without his written consent was illegal and amounted to interference of the appellant personal privacy. It is legally untenable to deny the appellant with general damages though business profit was not proved. After all, the respondent’s act was pure appropriation of the appellant’s personality. As said before, there is no dispute that DW3, under the instruction of DW2, both Appellant’s officers captured the Respondents’ images or pictures in the course of business. Similarly, there is no dispute that the same images were posted on the poster and publicized in the Appellant’s diaries. From the evidence adduced, there is no dispute also that the Appellant did not seek consent or 40 authorization before publishing the said pictures. In the premises, I am satisfied that the Appellant Cement Company misappropriated the Respondent's images and thus is liable for the tort of misappropriation of personality. The Appellant argued that in order to prove the tort of misappropriation of personality, the claimant must prove that the images were used for promotion, displayed publicly as a marketing tool and that the defendant gained economically. He formulated issues that both were answered in the negative. In my considered opinion, the counsel’s arguments were manifestly flawed. He appeared to misapprehended the evidence and facts on records. The fact that the pictures were posted on the poster and placed in the Appellant’s entrance door does not mean they were not publicized. As far as I know, the entrance is used by employees and other outsiders, like agents or their drivers, Public officers like inspectors, suppliers, researchers, visitors, and interns, to mention but a few. All had a chance to see the posters with the Respondents’ images. I could have arrived at a different story had the poster been placed in the managing director’s bedroom where only him and his wife could see. The Respondents’ prior consent was mandatory even 41 if the posters were to be placed in the Appellant’s toilet rooms. It does not matter if only the employees had an advantage to see the poster. I am also interested in another argument. The Appellant’s counsel argued that the diaries with the Respondents’ images were not for public use but were only distributed to employees. With respect, such an argument was not supported by evidence. Even if they were only given to the employees, there was still no authorization for using the Respondents’ images in the said diaries. The use of the images in the said diaries, respectfully, amounted to publication and, ultimately, misappropriated the cross objectors’ personalities. It was not quickly established that the diaries were only limited for use by the employees. In fact, no mechanisms were explained to the satisfaction of the Court restricting the general public from accessing them. The Appellant’s counsel further argued that there was no proof that the publication was for financial gain. I am unable to agree with the assertion that such proof must exist. As I said before, I subscribed to Nikki Chamberlain’s far-reaching interpretation that the tort of passing off is best left for remedying commercial harms. In contrast, a privacy tort should be adopted to remedy dignitary harms that do not 42 occur ‘in trade’ or for ‘commercial advantage.’ Since the right to privacy is invulnerable, it does not matter whether the person taking advantage of the images gained something or not. To maintain this as a point of law, in my opinion, will open a new pigeonhole where the victims may lose their rights because they have failed to prove the extent of profit gained by the defendant. Considering that the right to privacy is vital to protecting human dignity, a claimant needs not to prove that the display was for commercial advantage. The Appellant’s counsel further argued that the Respondents’ images were not used to advertise the Appellant’s cement product but rather to sensitize the use of alternative carrier bags. Mr. Bana was quick to respond to that. While referring to the testimony of DW2, Mr. Bana referred this Court to the words used on the posters and diaries styled “tunawajali watu wetu na Twiga Cement,” “nguvu zaidi, hakikisho Zaidi” and contended that there was no correlation with the alleged sensitization program. Mr. Rweikiza did not rejoin to this damaging aspect. In my evaluation, I am of the considered view that the images were used to advertise the Appellant’s cement product. It does not 43 matter whether they were photogenic, irrespective of whether or not it was for the alleged sensitization program. I agree with Mr. Bana that the words in the poster do not correlate with the alleged sensitization program. Even for the sake of argument that it was for the alleged program, consent from the Respondents/ cross objectors was still mandatory. From what I have tried to endeavor herein above, I wholesomely agree with Mr. Bana that the first, second, third, and fourth grounds of Appeal by the Appellant are devoid of merits, and I proceed to dismiss them. In the sixth ground of appeal, the Appellant’s counsel was not amused by a grant of Tanzanian Shillings 10,000,000/= each as general damages. On the contrary, Mr. Bana complained about the misapprehension of the judicial role in awarding general damages in the first, second, and third grounds of appeal in cross objection. He implored this Court to raise the sum of money as general damages. I shall, therefore, discuss the sixth ground of appeal in line with the first, second, and third grounds of appeal in cross-objection. I have already concluded that the Appellant misappropriated the personalities of the Respondents. I don’t think I will be backing off of 44 the decision I have already made. It suffices here to note that the Respondents deserve to be awarded general damages for the misappropriation of their personalities. As resolved above, except in a passing off tort, when a tort is premised on the tort of privacy by a claimant brought to protect his or her dignity, the issue of gaining profit by the defendant cannot arise. I understand that general damages need not be specifically pleaded and may be awarded even if not pleaded in view of Order VII Rule 7 of Civil Procedure Code (supra) (see also Consolidated Holdings Corporation Vs. Grace Ndeana (2003) TLR 191). Therefore, the awarding of the general damages depends on the jury's discretion (see also Bamprass Star Service Station LTD vs. Mrs. Fatuma Mwale (2000) TLR 390) and London and Northern Bank Limited vs. George Newes LTD (1900) 16 TRL 433). In Tanzania Saruji Corporation vs. African Marble LTD (2004) TLR 155, the Court observed that general damages are such as the law will presume to be the direct, natural or probable consequences of the act complained of, the defendant’s wrongdoing must, therefore have been cause of damage, it is the discretion of the Court. 45 The trial Magistrate awarded Tanzanian Shillings 10,000,000/= to each Respondent (except the 5th Respondent). As submitted by Mr. Bana, I think the discretion was not exercised judiciously considering the available records. Had the learned trial magistrate directed his mind properly toward the need to protect the privacy and dignity of human beings or cross objectors, he would have increased the awarded sum. In my discretion, I hereby award Tanzanian Shillings 20,000,000/= as general damages to the first, second, third, and fourth Respondents. This is due to the infringement of the right to privacy as per the testimonies of PW1 (the first Respondent and cross objector) on page 28, PW2 (the fourth Respondent and cross objector) on page 31, and PW3 (the third Respondent and cross objector) on page 35 of the typed Proceedings. Although PW4 (the second Respondent and cross objector) was a child of tender age, he testified on page 48 of the typed proceedings that having seen his picture, he “felt bad.” That alone is a sign and indication of bad emotional feelings capable of being remedied. To that end, the sixth ground of appeal is devoid of merit, and I dismiss it. I thus proceed to allow the first, second, and third grounds 46 of appeal in cross-objection to the extent only of increasing an award to Tanzanian Shillings 20,000,000/= as general damages payable to the first, second, third, and fourth Respondents. In the fourth ground of appeal in cross objection, Mr. Bana faulted the trial Magistrate for not awarding general damages to the fifth respondent/cross-objector because he did not testify. Mr. Rweikiza submitted that the trial Court was correct to take such a recourse because he failed to appear to prove how he suffered, either mentally or financially, as a result of the wrong done by the Appellant, if any. He added that tortious claims on infringement of personality involve personal feelings or emotions and thus are not homogeneous to everyone. I am constrained to agree with Mr. Rweikiza that a tort of infringement or misappropriation of personality involves personal feelings or emotions, which, at any rate, cannot be equalized to both human beings. Emotional feelings come in different styles and moods depending on the reception and nature of the event, giving rise to them. After all, every Respondent testified on his behalf and not on the other. Therefore, the fifth Respondent needed to testify to enable the trial Court and this Court to assess the extent of the infringement. 47 In the premises, the fourth ground of Appeal in the cross objection is hereby dismissed. In the final result, the Appeal is hereby dismissed with costs. The cross objection or cross-appeal is partly allowed to the extent only of raising the sum of general damages to the tune of Tanzanian Shillings 20,000,000/= only awardable to the first, second, third, and fourth cross objectors or cross appellants. The Court’s interest rate of 7% per annum shall apply to the decretal sum from the date of this Judgment to the date of full recovery. I order accordingly. Right of appeal explained. DATED at DAR ES SALAAM this 23rd August 2024. H.S. MTEMBWA JUDGE 48