ANASTACY BONGWA 222 edited Kamuzora

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB- REGISTRY OF MANYARA

AT BABATI CIVIL APPEAL NO. 20805 OF 2024 (Originating from Civil Case No. 1 of 2024 Resident Magistrate's Court of Manyara at Babati) ANASTACY BONGWA..................................................... APPELLANT

VERSUS ARKADI MOSHI QAMNUWAS.........................................RESPONDENT

JUDGMENT 8th October & 12th December, 2024 KAMUZORA, J. The respondent was removed from his position as the village chairman of Sabilo village herein in Babati after the allegation of misappropriation of village funds. Before his termination, the appellant was instructed to audit the village finances and he made a report before the village council and village assembly. After such report, the respondent instituted a defamation suit against the appellant herein before the resident Magistrate's court of Manyara at Babati claiming that on 9/9/2022 at Sabilo village, the appellant used defamatory words by calling him a thief during the village council meeting and village assembly. He claimed Page 1 of 13 for payment of TZS 50 million as general damages suffered as result of defamatory words falsely and maliciously uttered by the appellant against him. The allegedly defamatory words were referred at paragraph 5 of the plaint as follows; Mwenyekiti amekuIa he/a zenu kiasi cha shilingi milioni mbili /aki moja na e/fu themanini (Tsh. 2,180,000/=) na leo sitaki maswa/i ntawaweka ndani." The respondent claimed further that, the above referred words lowered his reputation for they made the public believe that the respondent had taken such amount of money from the village. In his written statement of defence, the appellant disputed the claim as he denied to have uttered defamatory words

against the respondent. He contended that, he was exercising his employment duties as an auditor assigned by Babati District Executive Director following complains advanced by the respondent's fellow leaders. He tendered the audit report as exhibit D2. After hearing the parties, the learned trial magistrate was convinced that the respondent proved his claim thus, awarded a sum of TZS 1,000,000/= million as punitive damages. He also ordered the appellant to issue a public apology to the respondent in like manner during the Page 2 of 13 village assembly. The appellant was displeased with the trial court's decision and preferred this appeal with two grounds as follows; 1. That, the trial court failed to evaluate properly the evidence on record.

2. That, the trial court erred in law and fact for delivering judgment in favour of the respondent while the respondent failed to prove his case on balance ofprobabilities. By parties' consensus, the appeal was disposed of by way of written submissions. The appellant was represented by Mr. Filemon Maige, learned advocate, while the respondent appeared in person, unrepresented. In his submission in support of the appeal, Mr. Maige faulted the trial court for failure to analyze the evidence on record. He argued that, in order to prove the claim for defamation three elements must be established. On the first element, he submitted that the respondent failed to prove that the words uttered were defamatory and that, there was variation on the alleged defamatory words stated on the plaint and those stated in the testimony by the respondent and his witnesses. To him, the variation on the alleged defamatory words amount to introducing new matters during evidence which was not pleaded thus, contrary to Order VI Rule 7 of the Civil Procedure Code [Cap 33 R.E 2019], (the CPC). He prayed the court to consider that parties are bound by their pleadings. He Page 3 of 13 referred to the case of Yara Tanzania Ltd vs Ikuwa General Enterprises Limited Civil Appeal No. 309 of 2009 Court of Appeal of Tanzania at Dar es Salaam in which reference was made to the case of Barclays Bank (T) Ltd vs Jacob

Muro Civil Appeal No. 357 of 2019 (both unreported) to insist that, parties are not allowed to depart from their pleading by adducing evidence contrary to what they have pleaded. He maintained that, the respondent failed to prove the first element that the uttered words were defamatory. As to the second element, the learned advocate argued that the defamatory statement must refer to the plaintiff. That, the words must be clearly pleaded in the plaint and be proved by evidence. He submitted that, the respondent failed to prove that the words uttered were capable of conveying a message of lowering the reputation of the plaintiff in the eyes of the right-thinking members of a particular group of people or society. That, what was brought in evidence was extraneous contrary to what was pleaded hence, no proof of the second element. On the third element the appellant's counsel submitted that, there must be a proof that there was publication, that is, communication to a third party. He argued that publication will only succeed if there is proof of defamatory words. He maintained that, the respondent failed to prove Page 4 of 13 existence of defamatory statement during the trial thus, no proof for publication and damages. The appellants counsel also submitted that, the learned trial magistrate failed to properly evaluate the evidence when he reasoned that it was the duty of the

appellant to prove falsity or truthfulness of the allegation against him. That, the case of Uhuru Muigai Kenyatta vs Baraza Ltd, [2011] EKLR which was referred by the learned trial magistrate is distinguishable from the present matter because in the said case, the defendant raised the defence of justification and the court held that the defendant was under the duty to establish the falsity or truthfulness. That, in the present matter, the appellant never raised any kind of defence as he disputed the claim raised by the respondent. The appellant's counsel further submitted that, the learned trial magistrate admitted variations in the evidence adduced by the respondent and his witnesses but proceeded to determine in his favour. He argued that, in evaluating the evidence, the learned trial magistrate ignored the fact that the appellant was exercising his official duties. He therefore maintained that, the respondent did not prove his claims thus, urged this court to re-evaluate the evidence on record. In reply, the respondent submitted that, PW2 and PW3 both testified to have heard the words uttered by the appellant as also captured at page Page 5 of 13 4 of the trial court's judgment. To him, the defamatory words were pleaded, proved by the respondent's evidence and was corroborated by the witnesses who heard the words uttered by the appellant. He insisted that, there was no

variation between the pleadings and the evidence. That, since the appellant failed to prove his allegations that the respondent misappropriated village money, the words uttered were defamatory intending to lower the reputation of the respondent before the village assembly. The respondent submitted further that, his evidence never departed from the pleadings and he managed to prove all the elements of defamation while the appellant was unable to prove that the respondent misappropriated the money. To support his argument, the respondent referred the case of Public Service Social Security Fund (Successor of the Parastatal Pensions Funds) vs Siriel Mchembe Civil Appeal No. 126 of 2018 Court of Appeal of Tanzania (unreported). The respondent also submitted that, he was required to offer explanation of the missing money but there was no proof that he converted the money to his own use thus, the appellant had no legal basis to accuse the respondent for theft or misappropriation of any money. That, the respondent was not offered a chance to state his case until when he was demanded to do so later thus, the announcement that the Page 6 of 13 respondent was a thief was done prematurely by the appellant hence, defamation. He therefore prayed for this court to dismiss the appeal with costs. Having gone through the parties' rival submissions and the record before me, I find it pertinent to

re-evaluate the evidence to see if the trial court reached a correct decision. It is a cherished principle of law that, in civil cases, the burden of proof lies on a party who alleges anything in his favour. The principle is embraced in section 110 of the Evidence Act [Cap 6 R.E. 2022]. It is also common knowledge that in civil proceedings, a party with legal burden also bears the evidential burden and the standard of proof is on the balance of probabilities. In the matter under scrutiny, it is pertinent in the outset to understand the meaning of defamation. The two learned scholars, Winfield and Jolowicz in their Book titled TORT, nineteenth edition, 2015, W.E Peel & J Goudkamp, Sweet and Maxwell, at page 360, define a defamatory statement in the following manner: "One, a statement which tends to bring a person into hatred contempt or ridicule; two, words must tend to lower the claimant in the estimation of the right-thinking members of society in general; three, if words tend to cause the claimant to be shunned or avoided." Page 7 of 13 A similar definition is found in the Halsbury's Laws of England Vol. 28 fourth edition at page 7: "A statement which tends to lower a person in the estimation of right thinking members of society generally or to cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule or convey an imputation on him disparaging or

injurious to him in his office, profession calling trade or business." In the case of Professor Ibrahim H. Lipumba vs Zuberi Mzee [2004] T.L.R 38: The Court of Appeal defined the term defamation as; "a deliberate, untrue, derogatory statement usually about a person, whether in writing or orally." In the light of the above stated position, for the claim of defamation to stand, the following must be proved; one, existence of a defamatory statement that refers to the claimant; two, the statement is published and, or communicated to at least one person other than the claimant and three, the statement is injurious to the claimant by lowering his reputation. It is the duty of the claimant/plaintiff to prove the above issues for the claim of defamation to stand. However, the onus shifts to the defendant to prove that; one, he/she had justification; two, that it was a matter of privileged occasion not actuated by malice. Page 8 of 13 In the matter at hand, the defamatory words which the respondent pleaded can be found at paragraph 5 of the plaint; "Mwenyekiti amekuia he/a zenu kiasi cha shilingi miiioni mbili iaki moja na e/fu themanini (Tsh. 2,180,000/=) na /eo sitaki maswali ntawaweka ndani." The above statement means that the appellant was addressing people telling them that the chairman has used their money TZS. 2,180,000/= for his own benefit and appellant was not

accepting questions will retain people in custody. The appellant denied to have uttered the above words thus, the burden lies on the respondent to prove that the appellant uttered the above words and the same are defamatory in nature. It was argued by the appellant's counsel that there was no consistence of the statement referred in the plaint differs and the statement referred in respondent's evidence thus, no proof that the appellant uttered those words. I agree that there is a difference in words referred as defamatory by the respondent in the plaint visa i//sthe words referred in his evidence and that of his witnesses. The above statement was captured from the plaint but in his evidence the respondent (PW1) testified that during the village council meeting the appellant said that, '"mwenyekiti amekuia fedha zenu na ni mwizi kiasi cha fedha shilingi 2,180, OOO/= to mea n that Page 9 of 13 the chairman used villagers' money TZS. 2,180,000/= for his own benefit and he is a thief. That, during village general assembly the appellant again said that, "mwenyekiti amekula heia zenu na ni mwizi "Xs mean that, the chairman used the villagers' money for his own benefit and he is a thief. PW2 testified that, when reading the audit report during the village council meeting the appellant said that, "mwenyekiti amekula hela za wananchi kiasi cha shilingi 2, 180, OOO/= na aiipe ndani ya

siku nane, huyu ni mwizi" Xq mean that, the chairman has used villagers' money TZS. 2,180,000/= and he should pay within eight days, he is a thief. That, during general assembly, the appellant also stated that, mwenyekiti wenu amekula fedha za kijiji, ni mwizi na anatakiwa aiipe ndani ya siku nane'" meaning that, the chairman has used the villagers' money for his own benefit, he is a thief and must pay within eight days. PW3 testified that during village general assembly he heard the appellant saying that, "mwenyekiti wenu amekula fedha za Kijiji na huyu ni mwizi aiipe fedha zenu ndani ya siku nane" meaning that the chairman has used the villagers' money for his own benefit, he is a thief and has to pay within eight days. As noted above, the records generally show that, there was variation on the words allegedly uttered by the appellant between the plaint and the evidence. There are words referred in the plaint but not Page 10 of 13 referred in evidence and at the same time, there are words referred in evidence which was never pleaded in the plaint. In the case of Fatma Salmin vs Dr. Maua Daftari, Civil Case No. 34 of 2008 (unreported) this court emphasized among other things the importance of setting out in verbatim the statement of claim. It held: - "In a suit by the plaintiff being one concerning defamation, be it libelous or slanderous statements, it is a requirement that

the words complained of by the plaintiff must be known and be set out verbatim in the statement of claim. It is not enough to set out their substance." The above position can also be found in the case of Nkalubo vs Kibirige [1973] E.A 102 in which the Court of Appeal for East Africa among other things, stated: "In all suits for libel the actual words complained of must be set out in the plaint.... In libel and slander the very words complained of are the facts on which the action is grounded. It is not the fact of the defendant having used defamatory expressions but the fact of his having used those defamatory expressions alleged, which is the fact on which the case depends. Those words have often since been cited with approval. This is not a mere technicality, because justice can only be done if the defendant knows exactly what words are complained of, so that he can prepare his dre/e/>ce"[Emphasis supplied]. Page 11 of 13 Now looking at the evidence adduced by the respondent and his witnesses, it is my settled view that, the words alleged to have been uttered by appellant were not quoted in verbatim rather what is stated in their evidence is just the substance of the words alleged to have been uttered. For instance, the word "mwizi" (literally meaning a thief) which was consistently recited by the respondent and his witnesses was not pleaded in the plaint. Equally, PW2 and

PW3 testified that, the respondent was ordered to pay the money within eight days, the said words were not pleaded in the plaint. In his evidence, the respondent did not say anything whether he was ordered to refund the money. Unlike PW1 and PW2 who mentioned exactly amount of money allegedly to have been taken, PW3 never mentioned any amount of money allegedly stolen. Again, while the plaint shows that the appellant threatened to retain people in custody, that was not the evidence of PW2 and PW3 who claimed to be present at the time those words were uttered. The learned trial magistrate readily noted that, there was such variation regarding the words uttered by the appellant, but he pointed out there was a proof that defamatory words were uttered by the appellant relying on the evidence of PW1, PW2 and PW3. It is unfortunate that, the learned trial magistrate did not address the requirement for the defamatory words to be set out in verbatim and not the substance. Had Page 12 of 13 the trial magistrate assessed the plaint in comparison to the evidence, he could have realized that the alleged words differed in material substance. Again, had the trial magistrate well assessed the evidence in totality, he could have realized that what transpired in the meeting had the background of the audit report based on the allegations raised against the respondent on misappropriation of the

village fund. What made the appellant to be at the village council meeting and later at the village general assembly was not instigated by malice on the part of the appellant rather it was in execution of his duty upon being instructed to work on the complaint raised against the respondent. The complaint letter referring loss of confidence against the respondent and the audit report in response thereof were admitted by the trial court but given no weight. Basing on the above discussion, it is my settled mind that the respondent failed to prove existence of defamatory statement thus, the other two elements become obsolete. I find the appeal to have merits and the same is allowed. The trial court's decision is hereby quashed and set aside with costs. DATED at BABATI this 12th December, 2024. Page 13 of 13