19821016 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA AT AW.ANZA HIGH COURT CIVIL C.HSE Nd, 41 OF 1981 •• ~ .............. ~•••••••••••••• 7 NO. B. 9967 PC. S1V'1WEL PLiiIN 1.HFJi v e r s u s J hl'liES KUBANDli DF]ENDl1NT ::ilUNYEBA, J.: Th"l plaintiff is a Police co~stabl"' .c,urrently st tionrd at !:/lagi, During th~ y"'.e,r .19.76 hi: w~,s a·t Nassa Policr-i post wj_ thin ,ila-gu Dietric~. Thl3 defendant is a resid,ent at thA sa,n"' placr. Nassa. ,Du.ring thio night of 30/6/76 thP dP.f~ndant' s hOUS"' ·was burgl 0 d into and a gang of robbers (JlltEr'°!d..• Th~ rob.hers ·took awe,y- Vc~rious ar;ticl 0 s to th"! value of Shs,.3000/.... .ln this proc11ss tiny a-ttack 0 d :the dAfAndant with p2ng.a and hA was so:w10ri:ily .wound':'d. H:i was ad,nitt"d to Bugando Hosp_i:tal_. ~":a11whi1" a rt:port w2s s ·nt to Nassa Polio" \llost.. Wh"'n ..thn dofendc1nt ,go-t well and discharg~c1 frcn hospi ta1 h" went to PclJc:o $tation to :nakl'l his st::1tcn:,nt. On his state n"nt h~ na,rn::d the, plaintiff as onn of thfl robb'.'rs who attackfld hLn and stol2 his goods. Th!: plaintiff' wa.s arr.· sted and investigations carried out,.· In the end thi:i charge agc!inst him was droppfld!' But as cl r:,sul t of tha. def',rndant• s r0port thr' plaintiff '1:1 repui.ation as a Po;t;i.c:i. officnr di;ninishPd. · His sllnio.rs s1.;_s1ecti>d hi.n and neva.r :t_,uskd him. He therefore filed this s.ui t clai;ning damagi:s cif Shs,40,000/= for defaaiation. In his def-an9c th 1: defendant statPd that it was true that robbers h,d a·d;2.ck,?d hi;n and cut hLn with panga• They also stole his propPrty. H,: l'C:!ported to Police post Nassa but hP diemil3d that he ,Mntionad th1J plaintiff as on€ of th9 robbers. He said he ,n1mtioned only thN1'.' p'rnplP, Tho;nas Lusangija, Wilson il'layungwa and Lutabatula Simbi. That thP plaintiff fra.n~d this suit agcjinst hi:n because hi'! (pl;:,dntiff) happen~d to arrest hLn twic"l, first for b~ing in poss:ossion of cc,nrmt and thl'ln for bfing in possPssion of sugar but l1" won both cases. It is agr~Ad by both sidl"s that ?r, 30/6/76 th<1 clrf(mdant was attack"'d by robbers dUJ.1ing thf' n~ght. Th 0 y cut hi.n wi-~h ponga and stol 0 his goods. A rPport was sPnt to the Policr post bt Nassa and th" plaintiff' was working the.re. Thn qufl stion is whr. th!?x the defendant had nentionC'd th 0 plaintiff to th0 Polio'.\ ,.:s 011" of th!> robbers. In this conmction thP. plaintiff called Cpl. P-it0x (I'.~ir~_.2)~ This witnPss stat"'d thc3t he was on duty at thi:i Polic0 post when T ,''. ..: ,Li! :; , ,:? y'lf'.~~ kf,: . . •::, ~~. ci :..: :L . t..,. y ~ -; ~- ii ,. • ~ !'-', 1 ~ ~ ~ ~ • • !I ~ ; !' ' t ..... 4 ~ ~ ,. 1 2 the di:f,mdant went to report th,;, robbery. The witness r,~cord"d thoCJ d~fendant's statE!i!Villt on 30/6/1976, sama night of th"! robb 0 ry. H~ said tho def!".ndant had ,n°ntion,:,d th" plaintiff c1s :is-,lcimani, askari Polio"•" Ths pl;~intiff is known as SamwP.li Selr,,m:ini and there was no illusion 2s who was rrrnant. I:n,n<>diatnly th-, plc:intiff was arr1?.stAd and invnstigations carriF.d out. Thc, wi tn-~ss has produc<>.d thP statP,:ncnt h':! recordP.d c~xhibit (P.1}. It b0.e.rs thP · I signature "Jemus Kubanda," thP defendant. iis ststsd n?:clir,r the I defendant adnittqd to hev~ ;nqntionqd thrqp people as his robbers but not the plaintiff. Asked how Cpl. Peter ~P.W.2) got th<' nane of th~ plc:intiff, h'-' said P0ter was lying. I do not find flny reason why Peti::r should hav0 concocted the statenP.nt. I find thc;t the def<mdant sp9cifically ;nentiona,d the plaintiff -:.s onn of th'.: robbPrs who stole his goods. 'l?his a,nounted to publication imputing thr.i co;n:nission of a criminal offence on tM plaintiff. Such kind of slanders are c:ctionable p"lr se without proof of special damagPs. The only t2.sk for this court is to considfr wn(!thP.r, apart fro~ the defendant's general denial (which I h0v~ dis~issPd), there was any other V-igal defence available to hi:n. ThP. custonary d:"!fence available to this kind of suit is that the de.fa:natory :nattP-r we.a published during a privileg0d occasion. The publication shall ba r@gar ~-~d as having bP.:?.n :nadn in a privill'!g"d occasion if th"1 pnson ~akir1g it h~d a duty or intl'.1rnst to ,nab~ it and th.:: pqrson to whom it was :nad~ had a duty to rr,cr·ivo. th" publication. Once such is tha oas~ tha plaintiff h2s to provP. that thA defendant :nadn the d~faJtatory publication with ,nalicP. That is th., position. Tur:r.ing to tha casn b~fore .nr: it was agr" ad that thP. defP.ndant was attacked by robbP.rs during th;- night of 1 30/6/1976. It follows that he had intr-rest in rPporting the :natter to thl" Polico 2nd infor-li the policP. of th!:'! p<'iopl, hr suspectt:>d 1 1 to hav"' robbP.d hi;n of his propl'lrty. This being th<:> OdB" th(:! plaintiff h~s to provG th~t d~spite all this, thP. d0fandant had :nalice towards hi.n. In his ,evideno,; th11 plaintiff stat,:d that so,neti:ne previous to th'c robb"'rY incidimt h~ happc!nic!d. to anest thE'! defendant twice. First he arrested hi.n in conn('ctio11 with a bag of sugar and thr:m in connection with cP.,n1:nt. He won both oases. ThP. plaintiff's oase was that the defandant m~mtionP-d him' to the Police in order to g~t hi~ in trouble and Js a rev~ngP. for what the plaintiff had don~ to him. Th~ def~ndant admitt~d that whsn the plaintiff was at :Nassa their :ri:;lation was not good. J1J ,. ,_.,f. ·1.r ;··1. ·-. I -~ '.Li 1.'.:: r,.. J.. l 'i. ':J ·:-11 ''·• ,; • 3 They were at loggerhead. H'l said thP. plaintiff happ,)1,,c1. to declare that hP. would s~'•. to it that he (def,rndant) runs bankrupt. I find that there wero grudges between th"} two partfr,s. lmd therl'l was no justification for.the defendant to select th~ _plaintiff alone a.nong the polic0;ncn at Nassa and includP. hi;n in. th·., list of robbers. · I agree wi tl). th~ plaintiff that hi:' did it in order to avenge hi:nself for· what thP. plaintiff had don° to lli;n• This was malice.' l find .tpat th~. plaintiff has provl:'d his c::1sl"! and give judgmen-"t in his: favour •. As for. fd-:rna~es, th~ plaintiif has clai;ned Shs.49,000/= general da;nagl=!se. - . I c:Ji . of the vi"lW tnat th0 a;nount is :,:X.Cfissive. ·The award of Shs.10 1 000/a will :n~et the justice of th;, Cf:S(' and . ' order accordingly. The! plaintiff to havE> his costs • .. ~r Li1Y~}· .... ~.,... ..,,.,.r..... ...,.,,.-._,.,r:-__ _ , r ........~ r .1. i .: , .... ~:.. .J:tn1· •• t ·,··· .·....... ,l • ~: ~· ~ ,: - ..· ,,,!:.._.·.,h ·.:' .. ;•,··, ··: .: ·: :!;• r-r:•. ~- . .-.1 (. ~- l· : J... !·.·., ..