جمهورية تنزانيا المتحدة

Multichoice Tanzania Limited v Maimuna K. Kiganza, Civil Appeal No. 166 of 2020, High Court of Tanzania at Dar es Salaam

E. E. Kakolaki, J.

Date of Judgment: July 2, 2021

Facts

This is an appeal filed by the defendant/appellant (Multichoice Tanzania Limited) after the plaintiff/respondent (Maimuna K. Kiganza) successfully sued for infringement of Copyright and Neighbouring Rights of her film "Penzi Biashara." The respondent filed suit alleging that the appellant aired the respondent’s film through digital satellite TV over one of the appellant’s channels, "Maisha Magic Bongo." Evidence showed that the alleged broadcasted film was registered under the respondent and had a copyright clearance certificate from COSOTA. During trial, the appellant claimed that they only provided subscriber management services, acting similar to an operating call center; thus, the appellant did not own the digital satellite TV through which the film was broadcast illegally. The appellant argued that the respondent had not proven their case and that the resulting damage awards and judgment should be reversed.

Holdings

(i) Failure to witness the movie airing on the claimed DSTV channel does not negate a factual finding that the movie was broadcasted through the digital satellite TV managed and owned by one of the appellant’s channels. This is because the appellant could not have managed its subscribers' services without coordinating the contents aired through satellite TV. A party is bound by its pleadings, and inconsistencies within a party’s own pleadings will not be ignored. The appellant cannot avoid liability on the premise that they did not know how their subscribers used their services, after pleading that the appellant had received permission from the owner (allegedly a different person than the plaintiff) of the film.

(ii) Special damages must be proved specifically and strictly. This can be done with receipts or other evidence of costs. Where there is misdirection on the evidence or misapprehension of the substance, nature, and quality of the evidence by the lower court, an appellate court is entitled to look at the evidence and make its own findings of fact.

(iii) General damages are presumed by law to have resulted from the defendant’s tort or breach of contract and are aimed at restoring the injured party to the position they were in before the infringement.

(iv) The court may grant 12% interest from the date of judgment to the date of full satisfaction of the decree only where there is an express agreement by the parties before or after delivery of the judgment.

Decision

The appellant/defendant’s liability was confirmed. However, the calculation of special damages was rejected because the plaintiff/respondent had failed to prove them in court. General damages were affirmed. Both objections were overruled and dismissed with costs. The 12% interest rate was rejected because there was no evidence of an express agreement. It was lowered to 7%.