20100511 TZCA Mwanza1

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IN THE COURT OF APPEAL OF TANZANIA

ATMWANZA CIVIL APPLICATION NO. 2 OF 2009 THE EDITOR MSANU AFRICA NEWSPAPER ......................... APPLICANT VERSUS ~ ZACHARIA KABENGWE ........................................... l.~~··· RESPONDENT (Application for Extension of Time to serve the respon~ with a copy· of the letter by which the applicant applied to be supplied with copies of proceedings, judgment and decree of the High Court of Tanzania at Mwanza) (Sumari. J.) i dated the 26 day of November, 2obs th in HC Civil Case No. 3 of 2001 -------:-------

RULING 7 & 11 May, 2010 MSOFFE, J.A.: The respondent ZACHARIA KABENGWE successfully sued the applicant, THE EDITOR MSANII AFRICA NEWSPAPER, for libel in the High Court at Mwanza and was accordingly awarded damages to the tune of shs. 10,000,000. Incidental'ly, the pleadings before the High Court appeared to refer to the tort as defamation. While it was not wrong to do so, the appropriate word ought to hav been libel which 7 in law refers to a written accusation, any malicious defamatory publication etc. A libel is different from slander in that the latter I I usually refers to Spoken words: So, libel arisek where there is a I written publication while generally speaking a slander arises where r . I there is injurious defamation by ,spoken words or by looks, signs, gestures etc. Sumari, J. pronou~ced the judgm~nt on 26/11/2008 and the applicant duly filed a Notice of Appeal, thrtough its advocate, i I Mr. Silwani Galati Mwantembe on 3/12/2008. On 2/12/2008 the i advocate wrote a letter to the ! Registrar applyling for copies of proceedings, judgment and decree for appeal i purposes. The gravamen of this application centres on the unbisputed fact that I there was a delay in serving the re~pondent with a Icopy of the letter. I I In this application the applicant is asking for enlargement of time to , I effect the said service on the resp~ndent. The ap~lication is by way I . of a

notice of motion and is supported by the! affidavits of Mr. Mwantembe and Mr. SILAS LUCAS !SANGI, a tourt broker and process server. For purposes of this application prragraphs 6, 7, 8 and 9 of Mr. Mwantembe's affidavit are relevant, thus:- 11 '1 I 6. That on Id December 2008, I assigned a court broker and process server one Silast Lucas Isangi to serve the r,espondent with I a copy of the said letter. 2 ! I I !I I 7. That I kept close contact with the ~rocess I I server to see whethe1 he succeeded to serve the respondent with the said letter, but the l I process server told m, e that the respondent , I 1 was no where to be seen in Mwanza and when he was called t~rough his mobill phone he told the process sJrver that he was not in :/ I Mwanza and promiser to fetch the litter at the process server's office when comes but he did not do so. j 8. That according to the records there is no specific address for seJvice for.the resJondent provided therefore it was not even yasy to i know the place where the letter could be served 9. That the respondent was never seen by the I process server. until wren the time pr. j'SCribed for serving the respondent with the said letter lapsed . I Likewise, paragraphs 2, 3, and 4 o Mr. Isangi's affidavit are relevant, thus:- 3 : I 2. That on :ld Decembei,- 2008, I was instructed by Mr. Silwani Galati: Mwantembe, (A1vocate) to serve the respondJnt

herein with J! copy of a letter that he wrote to the District Registrar applying to supplied ~ith copies of j!dgment decree and proceedings in respect of ~he High Court Civil Case No. OB of 2001. I ' ' , I 3. After receiving the instructions, I together I I with my staff officer one 'GIBSON MUTAIGEYA, looked lfor the respo~dent in ordet to serve him with the said letter. As the ', ! i respondent's place o~ work is not known to us, we looked for him at his home atl1samilo Mwanza. The respondent I was alwkys ! not there and the children told us that they did ' ' not know where he went and they e\ven did not know his phone r,umber, or his /;!lace of work. I 4. I kept on looking ~or the respon1ent on diverse dates at his home but he was always not there. I sometimes called him through his mobile phone where l,e said that he ias out of Mwanza and will be back sooii. i He promised to fetch the Jetter at my offic~ when 4 he comes back. However he did not come to iI my office and I did not see him up to ithe mid January this year. In response, the respondent filed an affidavit in reply. In similar i I vein, paragraphs 5, 9 and 10 of the respondent's a 1davit in reply are 1 relevant, thus:- 5. That, since when the High Court Judgment was delivered on 2d1 November, 200~ I have been available eithkr at my hoJe . or in Mwanza City doing my normal ]personal business, I have al~ays been

meeting I with I Mwantembe and Isangi on the streets, but they haven't asked or informed m~ of any documents to be se,,;:ed on me in thiJI matter. I 9. That, I deny the contents of paragra :hs 2 - 4 of Isangi's affidavit, moreover the sa~d Isangi has not come to my home or else however I received no any call from Silas Lucas Isangi that is pure blatant lie and pujery. i I 10. That, on 1,th Decemqer, 2008 I wen~ early in the morning at MagJ, while there, I ~eceived .• I a mobile phone call· from Gibson Mµtaigeya 5 whom I know him for a long period, he told me that he wanted a house to rent, I replied to him that I could be back on the 1ame day or the next, I came:on 15h Decem/J,er, 2008 in evening, but Gibson did not make follow up of his request, affidavits in reply of Mary ! Mussa Ntwale Kabengwe, Mussal Kitinde and Happiness Elikana, collectively are attached as exhibit ZK 4. I I This application was filed on 16/3/2009 at a time when the applicable Rules were the Tanzania Court of Appeal I Rules, 1979 (hereinafter the old Rules). In~ terms of RulJ 130 (a) of the Tanzania Court of Appeal Rule$, 2009, in so fir as is possible, I will to a large extent determine this application on the basis of the old Rules. Under Rule 83 (2) of the old Rules it wJs imperative upon an intended appellant to send ti the respondelt a copy of the I ! application applying for copies of the

proceedings in order to be entitled to rely on the exception to sub-rule (1) thereto. It is ! important to observe here that no :period was pretribed by the said Rules within which to send a copy. of the letter of I application. In ! order to fill in this gap case law prescribed a period of 30 days - See 6 The Principal Secretary Ministry of Defen',ce and National I Service v Devram P. Valambhia, (1992) TLR 38f at page 393. It is interesting to note that even under Rule 90 (2) bf the 2009 Rules no period has been prescribed within which to Jend a copy of the ' ' letter. Indeed, the new feature brought in by Rule 90 {2) is that I ' I instead of the word "sent" used in ithe old Rules, fhe word used now is "served." Anyhow, it is commbn ground that I in this matter the I ! period of 30 days prescribed by case law to eff~ct service on the 1 respondent of a copy of the letter applying for a cbpy of proceedings I I elapsed, hence this application. Under Rule 8 of the old Rules the Court m~y extend time for I I the doing of any act authorized by the Rules if thereI is sufficient cause ' ·, i for doing so. Needless to say, the power granted under this Rule is at . , I the discretion of the Court. And like any other diJcretion the power. has to be exercised judiciously. The crucial questio1 is whether or not sufficient cause has been shown to warrant the exercise of the 1 ! I discretion in favour of the applicant. 1 7

I I I The respondent exercised his right under Rule 53 (1) of the old I I Rules and lodged an affidavit in reply. Together ~ith his affidavit, for doing so there are three other affidavits in reply from HAPPINESS " I ELIKANA, MARY MUSSA NTWALE KABENGWE and MUSSA KITINDE. i I This drew criticism from Mr. Mwantembe that unde!r the sub-rule only I I a respondent who has been serve~ with a notice o~ motion may file an affidavit in reply. He accordingly. invited the Court to expunge from ! I the record the other affidavits in I reply. With re~pect, I am not in agreement with Mr. Mwantembe. ,In law an affidatit is evidence. So, · .i I ideally a person is free to bring i~ as many witnisses as possible in proving or establishing a certain ;fact. In this ~ense, ordinarily, a ' I person might wish to bring in affi~avits from othJr persons if by so I I doing they will prove a fact or fac~s in the matter ·rhich is/are in the personal knowledge of that person or those other\ persons only. In other words, it may be necessary t~ do so particularly where a certain fact or facts is/are not in the personal knowledge of a respondent. At "J 1 any rate, the catchwords under the sub-rule are more affidavits in reply". In my reading and understanding of th e sub-rule, it is 1 I 8 envisaged that the "more affidavits in reply" will come from persons other than a respondent. There is yet another point

that drew 1criticism from Mr. 1 Mwantembe. That the respondelt's affidavit in reply is defective in I ' I that the basis of belief is not shown in the verifiFation clause. Also l ' I that in the jurat it is not indicated \whether the resrndent was known to the Commissioner for Oaths. In this regard, Mr.I Mwantembe urged me to hold that the application is Jncontested and ~hould therefore be granted. With respect, this point need not detairl me. It is not my I intention to be drawn into deciding on whether or "ft the said affidavit in reply is defective, because under\ Rule 53 (1) a respondent has the discretion of filing an affidavit in reP,ly. In this sense, in the exercise of that discretion, a respondent maJ decide not to \file an affidavit in 1 reply. So, if a respondent decidej not to file such an affidavit that should not be taken to mean that the application i~ uncontested. On 1 the contrary, in the absence of an lffidavit in reply a respondent may I . still appear and contest the application. In this context, even if I were to hold that the respondent's affidajt in reply is defJctive, and thereby

I I I 9 I , I expunge it from the record that would not necessarily mean that thr I I application is uncontested. I This brings me to the crux of the matter in the application. In l deciding this application I have decided to take the following points . into consideration:- 1 (a) In his oral submission before me Mr. Mwan~embe asserted that I the period of 30 days expired on 1/1/2009 whicH happened to be ai I , ! public holiday. At that time his •ffice was clos4 due to the public holiday and the Christmas vacat\on which usually begins on 15th ' December and ends on 31 st Janual each year.' Jhen he came back: from vacation he realized that thl respondent ha~ not been served'. 1 with the letter applying for a copy \of proceedings, rut that it was not , until 16/3/2009 when he filed this application. WitTut mincing words, I will say straight away here that M~. Mwantembe was negligent in not: 1 taking prompt action. It defeats re~son that he reJorted back to duty I ' • I I at the end of January when he realized the mista,ke; yet it was not , until 16/3/2009 when he filed this jpplication. Wit1 respect, this kind ! 1 of laxity should not be allowed to haJppen in future. 10 I , I I , I I I (b) It is not in dispute that after the decision or the High Court on I I 26/11/2008 the notice of appepl was filed p~omptly, that is on . I 3/12/2008, within the period of f6urteen days prescribed under Rule I I 76 (2) of the old Rules.

I I I (c) There is also no dispute .I that the applicant, I through Mr. I I Mwantembe, took prompt action by writing a lette~ applying for a copy I of the proceedings. The letter was written on 2/12/2008 and received I I in Court on 3/12/2008. I I I 1 (d) It is also undisputed that the applicant, ~gain through Mr. I I 1 Mwantembe, acted promptly on 3/12/2008 by 1ssigning Mr. Silas " I Lucas Isangi, the court broker and process serverJ. to send a copy of . I the letter to the respondent. 1 I 1 1 (e) There is also no serious dispute that since the rJspondent's address I I was unknown, Mr. Isangi and one Gibson Mutaigey~, had to go to the : I respondent's home with a view t6 serving him Jith a copy of the I I letter. Unfortunately, they did not meet him at ho~e. In fact, in the i I absence of the respondent's address, what Mrl Isangi and Mr. I Mutaigeya were attempting to do here was in line with Rule 20 (7) of I I 11 . I the old Rules in that, in the circu1 stances, the cJpy of the letter was in effect "required to be sent" to t~e said respondeht "by hand". After giving the applicatiL a very ca~eful thought and 1 consideration I am of the following! decided opinion 1. There is no doubt I . . that there was an inordinate delay in filing ~his application, as I demonstrated above. However, on balance, i~ the light of the diligence shown by the applicant in (b), (c), (d) anb (e)

above, and in the spirit of "substantive justice" Jnder Rule 2 of ~he 2009 Rules, I am inclined to give the applicant a bhance to serve a copy of the letter I on the respondent. At any rate, I do not think that lhe respondent will be prejudiced by the decision to exlrcise my discretion in favour of the applicant. Henceforth, the application is granted. The siid letter should be II served on the respondent within a period of seven ~ays from the date of delivery of this Ruling. Since in lthis matter the 1pplicant is also to blame for indiligence as shown in ( t above, there ~ill be no order as I to costs. 12

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I I I I I! I :1 :: [ DATED at MWANZA this 10th !day of May, 201 . I l I ,I 'I 1. J. H. ~SOFFE

JUSTICE OF APPEAL ,, 13