THE Court of Appeal has ordered for fresh hearing of the suit lodged by a petty trader Celina Michael, demanding 350m/- compensation from seven media houses for defamation, allegedly publishing and circulating her photograph without her consent, despite being HIV/AIDS positive.
Justices Augustine Mwarija, Mwanaisha Kwariko and Rehema Kerefu reached into decision while considering an appeal lodged by Celina, opposing dismissal of her suit by the High Court, which ruled in favour of such media organs.
Such media organs, which were respondents in the appeal in question, are Mtanzania Newspaper, Mwananchi Newspaper, Mwanaspoti Newspaper, Editor ITV, Editor Star TV, Editor Channel Ten and Rai Newspaper.
They noted during the trial, though the aspect of consent featured prominently, not only in the pleading, but also in the evidence during the hearing of the suit, 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. 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," the justices said.
They emphasised that framing of issues is an important step in the conduct of civil cases as ensures just determination of controversies between the parties.
Failure to frame the issues arising out of the pleadings, the justices said, has the danger of leaving the parties' controversy unresolved which may lead to false outcome of the case and wastage of time. They said such failure vitiated the proceedings from the stage of framing of issues and its resultant decision.
"We thus allow the appeal and 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," they ruled.
The appellant sued the respondents in the High Court of Tanzania at Mwanza for compensation in respect of defamation allegedly committed by the respondents and claimed for payment of 50m/- by each respondent.
She had alleged that being a victim of HIV/AIDS, the respondents published and aired her photograph without her consent, putting her in another condition.
The appellant had testified that on diverse dates between September 8 and December 2, 2005 that she was pictured together with her infant child without her consent and approval, and that the said publication was in respect of her status as a victim of HIV/AIDS.
She alleged that she was defamed and suffered mental anguish, humiliation and was exposed to public contempt and lowered her reputation. She added that, being a petty trader, her customers shunned away from her, the children were scolded and stigmatised at school and as a result, they abandoned classes.
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.
They denied knowing the appellant personally and that they had no evil intention with her. The respondents 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 Organisation 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 programme.
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.
In his decision, the trial Judge found that the appellant failed to prove that the photograph was published in bad faith with or without 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 also found that the said photograph did not depict anything to that effect. The suit was therefore found devoid of merit and dismissed in its entirety.