20100104 TZHC Dar es Salaam

1 IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL CASE NO. 28 OF 1995 BONIFACE KAKIZIBA ANOTHER I PLAINTIFFS VERSUS THE MANAGING DIRECTOR TANZANIA BREWERIES CO. LTD . ...........•••... DEFENDANT Date of last Order 31/12/2009 Date of Judgment 04/01/2010 JUDGMENT Shangwa, J. This is a long time case~ It wa~ presented for filing on 7 th February, 1994. The dispute between the parties arises from the publication in the Daily News and Uhuru News paper dated 6 th 2 J August, 1992 of statements made by the defendant's Managing · Director Mr.· Arnold Kilewo which are alleged to be defamatory against the plaintiffs. Hearing of the suit started on 7 th April, 2003. Three issues were framed namely:- 1. Whether the words appearing in the News Papers namely Daily News and Uhuru News Paper of 6th August, 1992 at Page 5 represent the correct information stated by the defendant. 2. Whether the words appearing in the said News Papers were defamatory of the plaintiffs. 3. What reliefs are the parties entitled thereto. There are three plaintiffs in this case. These are Boniface Kakiziba, Gabriel Mosha and John Assenga who are the 1st , 2nd and •. 3 • 3 rd plaintiffs respectively. All of them were represented by Mr . . Dominic Kshumbugu, Advocate. Boniface Kakiziba and· John Assenga did testify as P.W. l and P.W.2 respectively. Gabriel Mosha passed away before hearing of this suit. Counsel for the plaintiffs was obliged to drop his name from the suit as there was no legal representative to be joined in the suit. Therefore, hearing of the suit proceeded with the 1st and 3 rd plaintiffs only. During the hearing of the suit, P.W.1 and P.W.2 who are the 1st and 3 rd plaintiffs respectively told the court that they were employees of the defendant company. P.W.1 said that he was employed by the defendant company as store officer and P.W.2 said that he was employed by the defendant company as senior supplies ""officer. Both of them said that the defendant company's Management terminated them from employment on 30 th July, 1992 following allegation that they sold five tyres belonging to the defendant company on pretext that they are used ones. 4 . In addition to that, both plaintiffs told the Court that after their termination from employment, the defendant's Managing Director called reporters from the Daily News and Uhuru News Papers in his office at Dar es Salaam and informed them that they had been terminated from employment on grounds that they had sold five tyres which belonged to the defendant company and converted the proceeds thereof, something which they had not done. They said that the information was published by the said reporters in the Daily News Paper and Uhuru News Paper dated 6 th August, 1992. P.W.1 tendered in evidence a cutting from the Daily News Paper in which the information was published. This cutting was received in evidence and marked as exhibit Pl. P.W.2 tendered in evidence a cutting from the Uhuru News Paper in which similar information was published. This cutting was received in evidence and marked as exhibit P3. Furthermore, both P. W. 1 and P. W. 2 told this court in their respective testimony that after their termination from employment by the defendant, they appealed to ·the Labour Conciliation Board •. , - ..... ,v, . -~ i ·, ' ,, ' 5 against their termination and that the said Board allowed their appeal. They said that the defendant company was not satisfied with the Board's decision and appealed to the Minister for Labour and Youth Development who dismissed its appeal, confirmed the decision of the Board and ordered for their reinstatement to their posts. P.W. l tendered the Minister's decision dated 17th May, 1993 which was received as exhibit P2. They said also that they were reinstated to their posts but that their reinstatement did not last long as they were later retrenched by the defendant. They also said that following the publication in issue, they asked the defendant to offer an apology but that no apology was offered to. them. As such, they decided to sue the defendant for defamation and claimed for general damages. Furthermore, they said that the publication in the Daily News Paper and Uhuru News Paper dated 6 th August, 1992 in which it was reported that they were sacked on grounds of theft affected them mentally and socially as their family members, fellow employees and friends lost trust in them and that due to. the publication, they could not secure any job elsewhere. Each one of them is now claiming for general damages of shs 25,000,000/= and I C .~ ~, ' ,, 6 praying for shs 20,000,000/= plus interest on the decretal sum and costs of this suit. Learned counsel for the defendant company, Mr. Mbwambo called one witness for disproving the claim lodged by the plaintiffs. The name of this witness is Steven Kilindo. He is the defendant company's secretary. In his testimony, he told this court that an employee's termination from employment is never confidential and that therefore the plaintiffs' termination from employment was not confidential. He said that the plaintiffs' termination from employment was known to their fellow employees. He said that when the plaintiffs were dismissed from employment, there was no press conference and press release issued by the defendant. He said that the five tyres were lost from the defendant's store under the plaintiffs' hands. He said, it is normal for the dismissal of any employee to be reported in News Papers without necessarily affecting his social status. 7 In his final submission, counsel for the defendant company Mr. Mbwambo stated that the 1st and 3 rd plaintiffs have failed to prove their claim on a balance of probabilities. He submitted on behalf of the defendant company that the defendant is a brewery company and not a publisher of Daily News Paper or Uhuru News Paper in which the publication complained of by the plaintiffs was made. Furthermore, he submitted that the defendant is not aware of the source of the article which was published in those News Papers about the plaintiffs' dismissal and injury to their reputation. He contended that since the information published in those Newspapers represented the true and correct information regarding the plaintiffs at that time and that since the information was not motivated by malice and since it was given in the public. interest, the defence of fair comment stands. Furthermore, he contended that the words which were used in both News Papers were not defamatory of the plaintiffs as those words did not expose them to hatred, ridicule or contempt or lower them before the right thinking members of society and that as there 8 1s no evidence from a third party to prove that the plaintiffs' reputation was. lowered before the right thinking members of society, they cannot say that they were defamed. Finally, counsel for the defendant prayed this court to dismiss this suit with costs. On the other side, counsel for the 1st and 3rd plaintiffs, Mr. Kashumbugu submitted inter - alia that the act of calling for a press conference and informing the public through the press that the plaintiffs had been sacked because of selling five tyres belonging to the defendant on pretext that they were used tyres was injurious to their reput~tion as there was no evidence to prove that they did so. He contended that imputation of a criminal offence is actionable perse and that there is no need of proving any special damages suffered. In support of his contention, he cited the case of K. Hassan V. Kithuku and Chali (1985) TLR 212 and the case of Rudolf Chavula V. Mohamed Athuman (1982) TLR 100. He prayed for judgment to be entered in favour of the plaintiffs with costs. 9 "' Having gone through the evidence given by the parties in this case and the submissions which were given by counsel for the parties and their contentions, I now start to consider the issues which this court was called upon to determine. On the first issue, . this court has been called upon to determine whether or not the words appearing in the Daily News Paper and Uhuru News Paper of 6 th August, 1992 at page 5 represent the correct information stated by the defendant. Now what are these words? At page 5 of the Daily News paper exhibit Pl, there is an article headed" TBL sacks four employees". The relevant words under this article read as follows:- " TBL Managing Director Ndugu Arnold Kilewo told reporters in Dar es Salaam yesterday that those sacked effective July 3Qth are John Lugongo, John Assenga, Boniface Kakiziba and Gabriel Mosha. The Managing Director alleged that Lugongo contracted his own truck TZ 3265 to ferry TEL -beer crates from · Mbeya to Dar es Salaam ...... We shall 10 ·spare no one in this house cleaning exercise. The Managing Director alleged that the other three workers sold five company tyres on pretext that they were used ..... " At page 5 of the Uhuru News Paper exhibit P3, there is an article headed " Meneja afukuzwa Bia kwa ukiukaji." The relevant words contained in this article read inter - alia as follows:- " Meneja wa Kanda ya Kusini (Mbeya) wa Kampuni ya bia (TBL}, Ndugu John Lugongo amefukuzwa kazi kwa madai ya kukiuka taratibu za kazi kwa kutoa tenda za TBL kwa kampuni yake binafsi. Mkurugenzi Mkuu wa TEL Ndugu Arnold Kilewo, aliwambia waandish wa habari ofisini kwake Jana kuwa Ndugu Lugongo alifukuzwa kazi tokea Juni 30 mwaka huu na Bodi ya Wakurugenzi 11 wa Kampuni hiyo ..... pamoja na Meneja huyo wafanyakazi wengine wa TBL Jyini Ndugu John Assey, Boniface kakiziba na Gabriel Mosha wamefukuzwa kazi kwa makosa ya kuuza matairi matano ya kampuni kwa madai kuwa yalikuwa mabovu." In my view, the words which are quoted above from the Daily News Paper and Uhuru News Paper dated 6 th August, 1992 exhibits P 1 and P3 respectively do reflect the correct information given to reporters of those News papers by the defendant company's Managing Director Mr. Arnold Kilewo. In fact, the information which is contained in both News Papers is exactly what the said Director told reporters in his office at Dar es Salaam. By this information, the public was made aware that the 1st and 3 rd plaintiffs being employees of TBL and other TBL employees whose names were mentioned by the Managing Director ofTBL, Mr. Arnold Kil~wo were sacked on grounds that they are thieves and indisciplined 12 employees in TBL. This disposes of the first issue which is answered in the affirmative. On the second issue, the court has been called upon to determine whether or not the words appearing in the Daily News Paper and Uhuru News Paper dated 6 th August, 1992 as earlier quoted were defamatory of the plaintiffs. In order to determine this issue, it is important to weigh as to whether or not the relevant words constitute defamatory matter. Section 39 of the News Paper Act [ Cap 229 R.E. 2002 ] defines defamatory matter to mean " matter which is likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule, or likely to damage any person in his profession or trade by an injury to his reputation ... " The gentlemen assessors whom I sat with in this case namely Mr. E. Likumbai, B. Malegeta and Mr. J. Mkandawile were of unanimous opinion that the words appearing in the Daily News Paper and Uhuru News Paper dated 6 th August, 1992 at page 5 in ., 13 respect of the plaintiffs constitute defamatory matter. They opined that those words were neither used as a fair comment made in the public interest nor were they based on a true fact as there was no proof to show that the 1st and 3 rd plaintiffs did sell five motor vehicle tyres which belonged to the defendant company on pretext that they were used tyres and converted the proceeds of sale thereof. As to whether the Managing Director of the defendant company Mr. Arnold Kilewo was motivated by malice in giving the relevant information against the plaintiffs to the News Paper reporters, the gentlemen assessors were of the opinion that so long as there was no proof to show that the plaintiffs sold the defendant company's tyres and converted the proceeds of sale thereof, it is likely that the information given by Mr. Arnold Kilewo to those News Paper reporters was motivated by malice. I agree with the gentlemen assessors that the words used in the relevant News Papers constitute defamatory matter against the plaintiffs. Those words squarely convey the impression that the 1st and 3 rd plaintiffs are thieves artd totally defective persons who can 14 no longer be trusted by anybody inside and outside Tanzania, and that they deserve heavy punishment that anybody can think about. This means therefore that those words which were published at the initiative of the defendant company's Managing Director did injure their reputation and exposed them to hatred and did damage them in their profession as store keepers. Although the defendant company's Managing Director Mr. Arnold Kilewo did not call a press conference as such or issue a press release when the plaintiffs were sacked from employment, there is clear evidence to show that he called reporters from the Daily News and Uhuru News Papers in his office at Dar es Salaam and informed them that the plaintiffs were dismissed for having sold five tyres belonging to the defendant company on pretext that they were used tyres. In my view, the said information was given to News Paper reporters not only out of malice but also out of ill will. It was not at all based on fair comment or in the public interest as argued by co·unsel for the defendant. It was indeed defamatory. 15 Although, the defendant's Managing Director Mr. Arnold Kilewo told reporters of Daily News Paper and Uhuru News Paper that the plaintiffs were sacked from employment for the sake of house cleaning, he had no proof to show that they had committed the alleged offence. That is why when the plaintiffs appealed to the Labour Conciliation Board against their summary dismissal by the defendant, they won the appeal and when the defendant appealed to the Minister for Labour and Youth Development against the decision of the Labour Conciliation Board, it lost the appeal, and the Minister ordered for the plaintiffs' reinstatement to their posts. This disposes of the second issue which is answered in the affirmative as well. The third issue is a general one. That is, to what reliefs are the parties entitled to. As correctly argued by Mr. Kashumbugu for the 1st and 3 rd plaintiffs, imputation of a criminal offence is actionable perse. In the case of K. Hassan V. Kithuku and Chali ( 1985 ) TLR 212 which was cited by Mr. Kashumbugu for the plaintiffs 1n support of his argument above, it was held by the late Sisya, J. 16 . that imputation of a criminal offence 1s actionable perse without proof of special damages. In that case, the defendant had imputed witchcraft against the plaintiff. Witchcraft is a criminal offence. In this case, the defendant imputed theft against the plaintiffs. Theft is a criminal offence. Therefore, the defendant's act of imputing theft which is a criminal offence against the plaintiffs is in law actionable perse without proof of special damages. Now, without seeking for further authority from the case of Rudolf Chavula V. Mohamed Athuman ( 1982) TLR 100 which was also cited by Mr. Kashumbugu for the plaintiffs, I hereby hold that as the plaintiffs were defamed by the defendant who imputed a criminal offence against them namely theft, the relief which they are entitled to is general damages. At paragraph 6 of the plaint, the plaintiffs claimed for shs. 25,000,000/= as general damages. However, at paragraph 8 (a) of the plai1:1t, 'they prayed for shs. 20,000,000 / = as general damages. Considering the gravity of the offence which was imputed on them by the defendant, the loss of reputation and the damage caused to them in their profession as the result of the publication in issue, r 17 ,., . the gentlemen assessors were of op1n1on that they should be awarded shs. 60,000,000/= each as general damages plus interest and costs of the suit. However, as the 1st and 3rd plaintiffs did not claim or pray for general damages of Shs. 60,000,000/=, this court cannot grant them something which they did not claim or pray for. In my opinion, the 1st and 3 rd plaintiffs are entitled to Shs. 20,000,000 / = each which they prayed for and which I think they well deserve as general damages to be paid by the defendant for injuring their reputation. I also award them interest on the said sum from the date of this judgment until payment in full at the rate of 7% per annum. Finally, I enter judgment in favour of the 1st and 3 rd plaintiffs with costs. ~ A.Shangwa JUDGE 4/12/2010 18 Delivered in open court this 4 th day, of January, 2010 in the f presence of Mr. Kashumbugu for the 1st and 3 rd plaintiffs and in the absence of Mr. Mbwambo for the defendant. ~ A.Shangwa JUDGE 4/1/2010