19980312 TZHC Tabora

IN THE HIGH COURT' OF TANZANIA AT" TABORA H/C CIVIL APPEAL NO• 3 3 OF 199T ,,{oRIG INAL CIVIL CASE NO~' 11 1 OF 1996 NZEGA \ ·. DISTRICT' COURT ) NGUSt1. SHIJA • • • • • • • • • • • • • • • • • • • •·• ., • • • APPELLANT' VERSUS KUYELP~ NKANDWA • • • • ·~ • • • • • • • .• ·• • • • • ·• • • • DEFENDANT' -JUDGM:EN'F The appellan~ Ngusa shija,appeals to this court against tihe dec:lision of the late MU.fungo,l)istrict Magistrate!. 1 The late rvru.fungo had condemned the appellant., in the sum o.f shs. 500;,ooo;= as: damages for defamation •. Mr• Kayaga 1 learned advocate for the appellant, has., argued that there was not that evidence to warrant. such condemnation. Ml'• ' Kayaga went on to state that, even assuming the claim. waa. proved, the figure o.f shs. 500 1 000/ = awarded was rathen too excessi vei~, what are the facts? Apparently the appellant is a gungusungu commander at a place called Nzega Ndogo. rt is alleged that on 5/8/96 the appellant convened a meeting and admonished the respondent as a thief of grass. on 29/9/96, he convened another meeting and still called the respondent a thief. 2 rt is olso sairl that matters did not end there~ The appelhmt ·t:;old people not to, talk to the respondent, and., indee~~ 1:ieople stopped talking to the respondent. Agsirt, there w6s ranother evidence which says that the respondent bad wanted to marry his daughter away but the exercise- . ; . fl ound Ci" Gd because of the OS trociza tion1 'ir1ese Oilega tions were also spoken by other witnesses. There wsre .~1,rtenzi }10Z8 pw2; 2nd Hbhnmedt.L.,.,~.,-- ~~~~~~•#".-....:::4~ wrnongo..... PW3J. ~ : 1 : : . : . : . .... ·O..···-t-.-t:..~;:.1 ,, rhe appellant~~ deferi~e ihich was rej~cted bJ the late 'f'IUi'Ul~L~o, District r1egistratejwes sirriplJ ttwt these allegations ' 0~re not true. Eej howeve~ admitted thot the respondent wes his brol:ih,ir. I think.with the avdiiabld aVidertcej the leoined ma[sistr2te HBs justified td cofoe to the conclus•io·n that the Dp~Jcllc:nt uttered these words ot the two meetings; and thst t~uly the respondent wos o~trorized. The~e were findincs bf' frrnt. The cruoiol issue then curne - v,rheth&r tho t, i:;1 ::.'-.,H j Hos defon11o1t ion/ o_~~~-~~:~~:.'.3. . ~,~~~!~, +1~1.'1 )??:-?.·.~.~~!.$~ defines CefoLlefion to be, that ,; d'.Lsparo ge11Jent of on individual: 1 · L1.. cle:£'G1i1dtor\ti1 stoternent is one ex:oosirnr: him: to hatred .i ridicule .t l-..? , Ol" contempt, or which Nmses him to be shunned or avoided, or which he.is a tendency to injure him in his office, professiou,on tiude. rt may constitute libel or slpnder.n C t I I • The 1aw l)ictio:rfary goes on to say: i1rn drder to determine whether a stateri1e'rlt ':is defarnator;y, it must be con~tru~d ih its natural and ordinary rheaning. : /I if not defamato~J in iuch meanin~ ii must be &ohbrued in the special meaning, ii any, in which it was unae·rstood by the person by and to .:whorh it was pUblishedi '· r-t is for the Judge t6 SBlJ whether the words are reasonably 6apablij of a defamatory meaningJ but fol? the jurr;y to say whether llnder the circumstances of the ' . ' c~s~ they in t~dt b~~r that meaning. Nb act ion can be maintained for libel or slander unless there be publication., ile. a, communication by defendant of the words complained of to some person other than the plaintiff.~ The evidence in this case is loud in that the respondent was called - thief at two different meetings. I ,::iifeG with the: trial court thet the respondent must have been disp::o:raged. But, may be something can be said on the quantum ..~.:..b.,-4,,;..,J.:.:.:t:.-4,c:,._-a.....: e......-c of award. rt is not always that an appellate court will change the quantum of award. The. appellate court will only interfere if there are cogent and comp ell inf?; reasons for doin;:; so. rn I Nance v-. British columbia Railways Cb• the case of~,-,-:e--,, -o,s;;-•• :::e-· :t:c:·:.C".~-"'-- . . .~ ~ ~ ~ . ; : ; : $ . 1 ~ ~ .If_G.~-n [ 1951] 2 All_ E.•R~ 448, a case quoted with appr,oval in the East African case of rlanga. v. Manyoka ,t-19617 ~:..-~•;sr,~~..-...~- ........ E•A• 705, and in another case by chipeta J~ - the case of ~~-=-·-:-r=a···...- GOkob.e Nahason v-. Mkani Tulime (Tabora) :· p.q. ........,__~...,.,_.-0 ..... -.... , . , . , . . . . . , . . ~ : ~ , . . . _ ~ .,. - civil Appeal K?• 26 of 1986, bhere is the following passage.: rt says:- 11whether the 'a•s$ess:m'~nt of datnages be by a judgJ, of jur't>y ~• the appe~late court is not j~-~tifi,ed 1~ suhsti tu ting ,\ ., . a .figure of its own .i'or that awarded belbw 'a:imply>· be,caJ~e it ~ould have ' . ·, ' . . ~ awarded a .differetit ., : figur~ , if :L.t had .. . ,, . ' . . EV.en if the tribunal o:f' first instance -' : . was a judge sitting aldhe, theri before the appellate hourt can properly interv~ne·, it must be satisfied that eibhe~ iha~ the judgk~ in assessing the damages, a~plied a wrong principle of law (as by taking into account some irrelevant ·factor or leaving out of account some relevant one); or~ short of this that the amount awarded is so inordinately low or inordinately high that it must be a wholly erroneous estimate of the damage,n Havin,:; said all tha1;, r am of the opinion that the learned district magistrate forgot to .take into consideration • 5 two factors-: Qne is that these parties are a person and that a young brother, secondly 'I, the~e is the undenied fact that these parties are simple peasants in the village'. 1 shs. 500,000/= to & peasant is quite 8.? lot of money• Had the learned trial magistrate considereQ these two factors, he surely, would have settied at .a figure less than shs. 500,000/::a r therefore reduce that quantum of award to shs, 100 1 000/= only'~ Except for thaat variation in the quantum, the appeal stands dismisse~. rt is dismissed with costs~ J • El- . •· MASANCHE, JUDGE 12th March 1998 .. - -----..-- par.ties: Absent'•