IN THE COURT OF APPEAL OF TANZANIA

AT MWANZA

(CORAM: MWARI3A. J.A.. KWARIKO. J.A. And KEREFU. J.A^

CIVIL APPEAL NO. 320 OF 2017

CELINA MICHAEL.............................................................. APPELLANT

VERSUS
1. MTANZANIA NEWSPAPER
2. MWANANCHI NEWSPAPER
3. MWANASPOTI NEWSPAPER
4. EDITOR ITV f .................................. RESPONDENTS
5. EDITOR STAR TV
6. EDITOR CHANNEL TEN
7. RAI NEWSPAPER

(Appeal from the Judgment and Decree of the High Court of Tanzania
at Mwanza)

(De-Mello. J/l

dated the 28th day of May, 2015

in
Civil Case No. 15 of 2006

JUDGMENT OF THE COURT

11th & 17th December, 2020

KWARIKO. J. A.:

The appellant sued the respondents in the High Court of

Tanzania at Mwanza for compensation in respect of defamation

allegedly committed by the respondents. In that suit, the appellant

claimed for payment of TZS. 50,000,000.00 by each respondent being

a compensation for libel and defamation, interest on the decretal sum

from the date of filing the suit till payment in full. The suit was

dismissed in its entirety. Aggrieved by that decision, the appellant

filed this appeal.

According to the facts of the case which led to this appeal, the

appellant alleged that being a victim of HIV/AIDS, the respondents

published and aired her photograph without her consent, imputing

her to that condition. It was her further claim that the said advert

defamed her and she suffered mental anguish, humiliation and the

public shunned away from her.

On the other hand, save for the third respondent, all others filed

their respective written statements of defence. In the said written

statements of defence, the respondents did not deny the publication

of the said photograph but claimed that it did not contain any

defamatory message. As regards the source of the photograph, the

respondents claimed that the appellant had entered into an

agreement with the photo bank known as PANOS pictures based in

Uganda and the UK where HAKIELIMU obtained it. On the part of the

third respondent, the matter proceeded ex parte against it in terms of

Order VIII rule 14 of the Civil Procedure Code [CAP 33 R.E. 2019]

(the CPC).

To determine the controversy between the parties, the trial

court framed and recorded the following three issues which were

agreed upon by the parties;

"1. Whether the defendants' advert if any, displayed in

the defendants' different medias amounted to
defamation as against the plaintiff.

2. I f the above is answered in the affirmative then,

whether damages were suffered and, to what
extent

3. To what relief(s), parties are entailed to?"

At the trial, being the sole witness, the appellant (PW1),

testified that on diverse dates between 8th September and 2nd

December, 2005, the respondents aired and published her

photograph in which she was pictured together with her infant child

without her consent and approval. PW1 testified further that the said

publication was in respect of her status as a victim of HIV/AIDS and it

exposed her to public contempt and lowered her reputation. She

added that, being a petty trader, her customers shunned away from

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her and her children were scolded at school and as a result, they

abandoned classes. The appellant tendered the said photograph

which was admitted in evidence as exhibit PI.

On their part, the respondents had two witnesses, namely;

Ayoub Semvua (DW1), the public relations officer of the fourth

respondent and Doris Marealle (DW2), the legal and administration

Manager of the second respondent. In their evidence, the witnesses

did not deny the airing and publication of the appellant's photograph.

However, they denied to know the appellant personally and that they

had no evil intention with her. They maintained that the photograph

did not contain any defamatory information and that it did not depict

anything concerning the appellant's HIV/AIDS status. The witnesses

testified further that the photograph originated from a Non-

Governmental Organization called HAKIELIMU and the same was

intended to educate and alert the general public on high maternal

death rates which was a Government's campaign through MKUKUTA

program.

In its decision, the trial Judge found that the appellant failed to

prove that the photograph was published in bad faith with or without

4
her consent and that it was defamatory. It was found further that the

respondents did not know the health status of the appellant that she

was HIV positive. The trial court found also that the said photograph

did not depict anything to that effect. The suit was therefore found

devoid of merit and dismissed in its entirety.

In this appeal, the appellant has preferred the following three

grounds.

1. That, the learned trial Judge erred in law and

fact for not awarding the appellant after the
respondents' publication [which] was illegal
having not sought her consent thus intruding
[into] her privacy.

2. That, the learned trial Judge erred in law and

fact to state that the respondents pleaded
justification which [was] submitted by the NGO's
and MKURABTTA but without consent o f the
appellant to print or show [the] photograph o f
[the] appellant on TVs and newspapers.

3. That, the learned trial Judge erred in law and

fact to state that the appellant failed to prove
her case while it is true that the appellant's
photograph used by the respondents by way o f
publication or publicly spoken to in the word o f
 "vifo vya uzazi" injured her reputation without
her consent to show her photograph on
newspapers and television."

At the hearing of the appeal, the appellant appeared in person

without legal representation. On the other hand, Dr. George

Mwaisondola, learned advocate represented the first, second, third,

fourth and fifth respondents. The sixth and seventh respondents did

not enter appearance though duly served through their counsel,

known as Juristic Law Chambers on 26th November 2020. As such, the

hearing of the appeal proceeded in their absence in terms of Rule

112(2) of the Tanzania Court of Appeal Rules, 2009 as amended (the

Rules).

It is noteworthy that neither the appellant nor the respondents

filed written submissions as required under Rule 106 (1) and (7) of

the Rules. Parties were thus allowed to argue the appeal orally.

When given an opportunity to amplify on her grounds of appeal,

the appellant adopted the same without more and urged us to

consider them and allow the appeal.

On his part, from the outset, Dr. Mwaisondola declared his

stance of not supporting the appeal. He argued that the first and
6
second grounds do not arise from the issues framed by the trial court.

The framed issues did not contain the aspect of lack of consent by the

appellant in publishing her photograph. To clarify on this point, he

referred us to pages 130 and 61 of the record of appeal and

supplementary record of appeal, respectively.

Regarding the third ground of appeal, Dr. Mwaisondola argued

that in order for the claim based on the tort of defamation to succeed,

the claimant should establish the following ingredients: First is proof

of publication of the alleged defamatory article. He submitted that

exhibit PI shows that the said photograph was published by the first,

second and third respondents only. As such, the question of

publication by the fourth and fifth respondents did not arise.

The learned counsel went on to argue that, despite the

publication of the photograph, the appellant was duty bound to prove

whether the same was defamatory. To bolster his position, he cited a

persuasive decision of the High Court of Tanzania in the case of

Fatuma Salmini v. Dr. Maua Daftari, Civil Case No. 34 of 2008 at

Dar es Salaam (unreported). He argued that the appellant did not

7
prove whether the words accompanying the photograph were

defamatory and that the publication defamed her.

Dr. Mwaisondola argued further that, the second ingredient is

that for a publication to be defamatory, it should contain false

information and capable of lowering the complainant's reputation. In

support of this preposition he referred us to page 7 of the case of

Fatuma Salmini (supra) and Rugarabamu Archard Mwombeki

v. Charles Kizigha & Three Others [1985] T.L.R 59 at page 68.

The learned counsel contended that in the instant case, the

photograph did not contain anything relating to HIV/AIDS and if

anything, this issue was raised by the appellant herself in the plaint

and in her oral testimony. The third ingredient as explained by the

learned counsel is that the complainant should suffer damages as a

result of the alleged defamatory publication. He added that, the

appellant did not show how she suffered as a result of the said

publication. In support of the foregoing contention he referred us to

another case of the High Court of Tanzania of Edwin William

Shetho v. Managing Director of Arusha International

Conference Centre [1999] T.L.R 130.

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 Upon further reflection, the learned counsel argued that even if

the publication was defamatory, being media outlets, the first to fifth

respondents are covered by the defence of privilege because of the

nature of their work, and particularly because they were doing so for

the NGO's and the Government in a campaign to reduce maternal

death rates. He contended that, the evidence to that effect was not

controverted by the appellant as shown at page 69 of the record of

appeal. As regards the defence of privilege, the learned counsel

referred us to another persuasive decision of the High Court of

Tanzania in the case of Astus Njale Masule and Another v.

Dogani Lunala [2002] T.L.R 197. He finally urged us to find that the

appeal has no merit deserving to be dismissed. He left the issue of

costs to the discretion of the Court.

In rejoinder, the appellant argued that the respondents did not

prove that the publication was done on behalf of the NGO's and the

Government and those who asked the respondents to publish the

photograph were not summoned to testify before the trial court. She

submitted further that her children suffered ridicule following the

publication and her local area leader accused and blamed her to

advertise her HIV/AIDS status for purpose of receiving favours.

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 Upon being probed by the Court, the appellant admitted that

the said photograph is not accompanied by any issues relating to her

HIV status but argued that the respondents did not seek her consent

to publish it. She added that she did not enter into any agreement

with anyone to publish the complained of photograph.

We have considered the grounds of appeal and the submissions

made by both parties in support and against them. The issue for our

determination is whether this appeal has merit. In the course of his

submissions, Dr. Mwaisondola argued that the first and second

grounds have raised a new issue of consent of the appellant which

was not dealt with at the trial court. Having perused the record of

appeal, we are certain that the learned counsel's argument is not

backed up by the record of appeal. This is so because from the outset

the appellant complained that the respondents did not seek her

consent to publish her photograph. She stated the following in

paragraph 12 of the plaint:

"That on diverse dates between 8th September up

to 2nd December 2005, without the consent o f
the plaintiff, a victim o f (HIV/AIDS) disease, the
defendants published in their respective

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 newspapers and advertised on their respective
television channels the photograph o f the plaintiff
and the photograph o f her deceased child, in
relation to the aforesaid (HIV/AIDS...." (Emphasis
supplied).

Apart from the appellant's complaint of lack of consent in the

publication of her photograph, the respondents countered it to the

effect that the said photograph was published in the Government

program to educate the public on maternal death rates and they got it

from the NGO's which sourced it from the photo bank with which the

appellant had entered into agreement. Specifically, the sixth

respondent stated at paragraph 6 of its written statement of defence

thus:

"...The defendant states that the said photograph

originated from HAKIELIMU, a Non-Governmental
Organization, and the same was intending to
educate and alert the public on the high maternal
death rate. The defendant states further that the
plaintiff had entered [into] an agreement with the
photo bank known as PANOS PICTURES the copy
right holder o f the photograph based in Uganda
and UK from where HAKIELIMU obtained the
photograph of the plaintiff for educational

11
 purposes. The defendant states that the
plaintiff agreed to have her photograph
taken for the said use and was financially
considered." (Emphasisours)

Following those pleadings, both parties led evidence for and

against the suit. In her evidence at page 62 of the supplementary

record of appeal the appellant stated as follows during examination

in-chief:

"There is no justification to display my photograph

with such heading and without my consent and
truly against the whole scenario..." (Emphasis
added)

Equally, during cross-examination at page 63 of the record of

appeal she testified that:

"My complaint is on the consent and approval

to display which was never sought...I insist that my
approval was necessary prior to the display o f any
kind. "(Emphasis ours)

On their part, the respondents evidenced through DW1 in

relation to the complaint about the appellant's consent at page 66 of

the supplementary record of appeal as follows:

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 "The allegations are that we advertised by
publication and without her approval rather
consent, that she is ill."

Now, from the foregoing, it is clear that the issue of consent

featured prominently, not only in the pleadings by the parties, but

also in their evidence during the hearing of the suit. However, that

matter was not framed among the issues and considered with the

view of resolving the controversy between the parties. The trial Judge

merely mentioned it in passing in her judgment at page 136 of the

record of appeal that:

"...the plaintiff failed to prove her case to

standards. Whether it was advertised on bad faith
or otherwise, with or without her consent..."

It is our considered view that the issue of consent of the

appellant in publishing her photograph ought to have been framed as

one of the issues for determination by the court because as stated

above, it featured in the pleadings. Order VIII rule 40 (1) of the CPC

provides as follows:

"Where a suit is not resolved by negotiation,

conciliation, mediation or arbitration or other similar
alternative procedure it shall revert to the trial
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 judge or magistrate for final pre-trial settlement
and scheduling conference, to enable the court to
schedule the future events and steps which are
bound or likely to arise in the conduct o f the case,
including framing o f issues and the date or dates
for trial."

We wish to emphasis that framing of issues is an important step in

the conduct of civil cases as it ensures just determination of

controversies between the parties. Failure to frame the issues arising

out of the pleadings has the danger of leaving the parties' controversy

unresolved which may lead to false outcome of the case and wastage

of time as it has happened in this case. In our earlier decision in the

case of Stella Temu v. Tanzania Revenue Authority [2005] T.L.R

178, the first appellate court did not decide the matter that arose in

the pleadings and the evidence given to that effect simply because it

was not a framed issue, the Court stated inter alia thus:

"As the issue o f defamation was contained in the

pleadings and the appellant gave evidence on it,
the trial court was right to make a finding on it
even though it was not among the framed issues."

Similarly, in the case at hand, the trial court failed to frame and

decide an issue concerning the appellant's consent in publishing her

14
photograph. This failure vitiated the proceedings from the stage of

framing of issues and its resultant decision. We thus allow the appeal

and hereby quash those proceedings and the judgment of the High

Court.

Having quashed the proceedings and judgment, in order for

justice to be done in this case, we remit the case file to the High

Court for the suit to be heard de novo from the stage of framing of

issues.

DATED at MWANZA this 17th day of December, 2020.

A. G. MWARIJA
JUSTICE OF APPEAL

M. A. KWARIKO
JUSTICE OF APPEAL

R. J. KEREFU
JUSTICE OF APPEAL

The Judgment delivered this 17th day of December 2020, in the

Presence of the Appellant in person and Mr. Geofrey Kange, learned
advocate for the first, second, third, fourth, fifth, sixth and seventh
Respondents, is hereby certified as p jferue copy of the original.