20140819 TZHC Iringa

._;J .. .· . . . .,..,,. . . ':,,. · ~- IN THE HIGH COURT OF TANZANIA AT IRINGA CIVIL CASE NO. 5 OF 2008 MARTIN NASHOKIGWA .................................... I •••••••• PLAINTIFF Versus 21 st May & 19th August, 2014 JUDGMENT MWAMBEGELE, J.: This is a suit for defamation the facts of which can be stated quite shortly. The Plaintiff's claim against the Defendants is for the sum of Tshs. 250,000,000/= and Tshs. 280,000,000/= being, respectively, general and special damages for libel. The first Defendant is the proprietor of Paradise Guest House in Mafinga Township. The second and third Defendants are legal persons whose permanent addresses are in the city of Dar es Salaam. The suit is founded on a letter to the editor which was published in the Nipashe Newspaper of 26.03.2003. The Newspaper issue in question was tendered and admitted in evidence as Exhibit P3. The letter under discussion, at the expense of being longish, reads in full as follows: "Wenye gest Mafinga jihadharini na tapeli huyu Mhariri, Tapeli huyu anasema anafanya kazi ya barabara inayojengwa kuelekea Mgololo pamoja na madaraja. Cha kusikitisha hata hivyo ni kuwa hata siku moja huoni kuwa kwa namna moja au nyingine anahusika na barabara hiyo kwani hatumwoni hata kuzungumza na wafanyakazi wenzake kwenye ujenzi huo wa bara bara. Mara nyingi tumekuta akitoka baa moja huoni akizungumza na wafanyakazi wanokuja hapa mjini. Ila yeye utamkuta baa moja hadi nyingine akistarehe tu. Kazi kubwa anayofanya ni kupeleka kesi polisi kila siku. Yeye aliingia hapa Mafinga na pesa kidogo, akifikia gesti moja hapa. Hapo alilipa fedha taslimu akalala kwa wiki nzima iii aonekana (sic) mtu mwenye pesa na aweze kuaminika. Hata hivyo siku ya siku alizua kuwa ameibiwa sh 100,000 na jinsi alivyoonekana walimpa pesa hiyo bila hata ubishi wakiamini kweli tapeli huyu anayeonekana nadhifu inawezekana wateja wenzake walimtoa kiasi hicho hapo. Baada ya hapo alihama na kwenda nyumba ya wageni nyingine akalipa pesa ya siku tano bila ubishi. Siku moja akazua ameibiwa kamera ya thamani ya sh. 150,000 aliyokuwa ameacha chumbani wakati akioga asubuhi vuta ya hapa na pale mwenye gesti akalipa kwa miadi kuwa atawakata wahudumu wawili wa gesti hiyo. Hapo akahama kwa kisingizio wezi wamemwibia. Kufika kwenye gesti ambayo s1s1 tunaoandika inatuhusu alilipa pesa ya siku tano hapo tukamuona kila siku yupo baa anakunywa na kuendelea na starehe zake. Baada ya hapo aliongeza mkopo wa siku tano akisema atalipa siku ya kuondoka cha kutisha siku mbili kabla alizua ameibiwa simu yake ya thamani sh. 80,000 2 I, asubuhi wakati anapiga mswaki. Kwa hiyo anataka alipwe mara moja. Sisi tukamwambia sisi hatuna kawaida ya kuingia chumba cha mteja hadi alete funguo mapokezi. Kwa hiyo muda huo aliosema ameibiwa simu, funguo bado alikuwa nazo kwa hilo jambo sisi hatuhusiki hata kidogo wala hatuwezi kulipa pesa hizo. Badala yake tukamwambia kuwa sisi ndiyo tunaomdai fedha za malazi katika nyumba yetu ya wageni. Hata hivyo mzee huyo hakulipa badala yake aliamua kupeleka kesi polisi na hapa kwetu akahama. Sasa anaonekana anazunguka tu hapa mjini. Na inasemekana yuko kwa rafiki yake amejibanza akisubiri alipwe pesa hiyo iii aweze kuondoka kwenda kwao. Hapa Mafinga anatupashida sana kwani kila siku sisi tumekuwa watu wa kwenda polisi tu. Kwake kesi ndiyo inaonekana biashara anayofanya. Tunaomba polisi wafanye uchunguzi na wajue historia ya mzee huyu. Kwani tuna wasiwasi pia anaweza kuwa chanzo kikubwa cha kueneza Ukimwi kutokana na mtindo wake wa maisha. Walalamikaji S. L. B 212 Mafinga" The genesis of this letter, as can be deciphered from it as quoted above, is an incident which occurred previously on the morning of 10.03.2003 at Paradise Guest House in Mafinga Township. The Plaintiff was in charge of a road construction project from Mafinga to Mgololo and was, on the material date, putting up at Paradise Guest House; the property of the first 3 \l Defendant. On that morning, the Plaintiff's cell phone got stolen in his room while he had gone to take a bath outside. The bathrooms to the guest house rooms were located outside the guest rooms. After the Plaintiff took his bath, he returned only to find the door of the room in which he was putting up open. It appears it was opened using an identical key as the Plaintiff had taken the key of the room with him. A simple search revealed that his mobile phone was stolen. His briefcase was open but nothing had been stolen from it. The Plaintiff had locked the door when going to the bathroom and, as aforesaid, kept the key with him. Upon inquiry, the Plaintiff suspected that it was the receptionist going by the name Mwagito who might have done the awful act. However, upon the said Mwagito being asked, he denied to have committed the act. He was nevertheless taken to the Police to which he was charged with the offence of stealing the mobile phone but sometimes later; on 25.11.2003 to be exact, his case was withdrawn and he was accordingly discharged. The Plaintiff claims that in consequence of the libel, he has been much injured in his reputation and work as Branch Manager of Moncare Tanzania Company Limited and ever since it has become difficult to secure construction works and his marriage has been in shambles ever since. Efforts by the Plaintiff to make the Defendants apologize and resolve the matter amicably proved futile. That is the reason why, through Mr. Mushokorwa, learned Advocate, filed this suit for damages. Four witnesses, including the Plaintiff himself, testified for his case. He called Lazaro Kitundu PW2, Gideon Kahola PW3 and Mohamed Mbelwa PW4 to testify in support of his case. 4 •I ti 0 On 17.05.2006, this court ordered that the suit proceed by ex parte proof against the second and third Defendants. The court made that order after it was sufficiently proved that the second and third Defendants refused service on 25.04.2006. The court process server had sworn an affidavit to that effect on 27.04.2006; hence the order the order of this court of 17.05.2006. In the premises, this suit proceeded without hearing the second and third Defendants. Neither did they file any pleadings in response to the Plaint. The first Defendant acknowledges the fracas that emanated on the morning of 10.03.2003 at Paradise Guest House. However, he vehemently denies any knowledge of, or having a hand whatsoever in, the publication of the letter under reference. He also denies the letter to have been authored by any of his employees. He called two witnesses; Rena Samina DW2 and Andrea Ngusi DW3 to support his case. DW2 is an employee of Tanzania Postal Corporation at Iringa while DW3 was an employee of the first Defendant at the material time and, as can be gleaned from the evidence in context and its totality, is the one the Plaintiff refers to as Mwagito. The gist of the evidence of DW2 is that the post office box used by the authors of the allegedly defamatory letter was not rented to the first Defendant but, rather, to one Joseph Mwapinga of Mafinga. The first Plaintiff was rented Post Office Box number 208, so this witness testified. 5 Like the first Defendant, DW3 concedes on the fracas that occurred on the material date at Paradise guest House and his consequently being charged and ultimately being discharged in Criminal Case No. 43 of 2003 together with one Mapinduzi Mpinge; his co-attendant at Paradise Guest House of the first Defendant. He was bailed out by the first Defendant while Mapinduzi Mpinge was bailed out by his brother; one Erasto Mpinge. The fact that the accused persons were bailed out in a case he was the complainant irked the Plaintiff, so DW3 states. He states that the Plaintiff unleashed strong words at the first Defendant in the court precincts on the day they were bailed out shouting why he bailed his culprits out and at the same time he refused to pay for his stolen mobile phone. DW3, like DW2, states that their Post Box address was not 212 but 208 and denies to have~ authored the libellous letter. The following issues were agreed upon by the two learned Counsel; Mr. Mushokorwa for the Plaintiff and Mr. Mwamgiga for the first Defendant and adopted by the court: 1. Whether the publication made by the second and third Defendants as carried out on Nipashe Newspaper dated 26.03.2003 and which is extra A3 to the Plaint was made against the plaintiff and whether this publication involved the first defendant. 2. Whether the said publication was defamatory of the plaintiff. 6 / J 3. Whether the Defendants were justified to make that publication. 4. Whether Plaintiff suffered any damages; and 5. To what, reliefs are the parties entitled. Before embarking on tackling the issues as posed, let me tackle some relevant issue first. On 07.05.2014, I allowed Mr. Mushokorwa's application to amend the Plaint. The application was sturdily resisted by Mr. Mwamgiga for the first Defendant. I promised to give reasons for granting the application in this judgment which I now give. Mr. Mushokorwa for the Plaintiff made the application under the provisions of Order VI Rule 17 of the Civil Procedure Code, Cap. 33 of the Revised Edition, 2002 (henceforth "the Civil Procedure Code''). Supported by an affidavit in support of the application, Mr. Mushokorwa submitted that the amendments entailed two aspects; first, to introduce a loss report referred to in paragraph 8 of the Plaint and secondly, by rectifying the Plaint by stating the quantum of special damages as Tshs. 280,000,000/= which figure was inadvertently omitted in the original plaint as a typing error. Mr. Mwamgiga strenuously resisted the prayer stating that the provisions of Order VI Rule 17 of the Civil Procedure Code cannot be brought into play after the First Pre-Trial Conference was conducted on 29.04.2010. He also stated that the application was time barred in that it ought to have been made within sixty days after 29.04.2010 and that the applicant Plaintiff had not sought and obtained leave of the court to file same out of 7 0 0 time. He added that the provisions of Order VIIIA Rule 4 of the Civil Procedure Code prohibit departure from the scheduling order and further amendments. To bolster his argument, Mr. Mwamgiga cited and referred the court to an unreported case of this court of Munawer M. Pardan Vs Jubille Insurance Company of Tanzania Ltd Commercial Case No. 36 of 2007. In a short rejoinder, Mr. Mushokorwa for the applicant Plaintiff submitted that the question of departure could not be discussed at that stage as the court had already made a ruling to the effect. Referring to the provisions of Order VIIIA Rule 4 of the Civil Procedure Code prohibiting any amendments after the scheduling order, Mr. Mushokorwa stated that Order VIIIA, which introduced Alternative Dispute Resolution (ADR) in the Civil Procedure Code, did not affect section 97 and Order VI Rule 17 of the Act. He thus stated that they were in the right track to amplify what they had stated in the plaint. For easy reference, let me reproduce the provisions Order VI Rule 17 of the Civil Procedure Code: "The court may at any stage of the proceedings allow either party to alter or amend his pleading in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of 8 0 determining the real questions in controversy between the parties." As can be seen above, Order VI Rule 17 of the Civil Procedure Code gives discretion to the court, at any stage of proceedings, to allow a party to the suit to amend pleadings in the manner that would not offend the ends of justice. As rightly pointed out by Mr. Mushokorwa, when Order VIIIA was introduced in the Civil Procedure Code, it left intact section 97 and Order VI Rule 17. This would connote that these provisions are still part of our law. The reason why the provisions relating to ADR were introduced into the Civil Procedure Code, as has been held in a number of decisions of this court and the Court of Appeal, was to expedite the hearing and determination of the suits. They did not, in my view, mean to strip the courts of the discretionary power, or allow parties, to amend pleadings as provided for by section 97 of, and Order VI Rule 17 the first schedule to, the Civil Procedure Code. Otherwise, if the legislators intended that after the introduction of the ADR into the Civil Procedure Code, such powers ceased to be part of our law, they would not have failed to state so catetegorigally. Mr. Mwamgiga made heavy reliance on the decision of this court of Munawer Pardan (supra) as an authority for the case at hand. In spite of the fact that I look askance at the Munawer Pardan case, I do not think it is relevant in the present case. The Munawer Pardan case dealt with the applicability of Order VIIIA Rule 4 of the Civil Procedure Code and the limitation of time within which an application for departure from a 9 scheduling order can be made which is not the case in the present instance. As rightly pointed out by Mr. Mushokorwa, that issue was fait accompli as it had been decided upon in the ruling of this court of 28.04.2014. The question as to at what time should amendments to pleadings in civil cases be allowed was dealt with at some length in Eastern Bakery Vs Castelino [1958] 1 EA 461 by the defunct Court of Appeal for Eastern Africa. Having analysed that Rule 18 of Order VI of the Uganda Civil Procedure Rules (which is in pari materia with our Order VI Rule 17 of the Civil Procedure Code) as corresponding to Order 28 Rule 1 of the Rules of the Supreme Court in England and to Order VI Rule 17 of the Indian Civil Procedure Rules, and the principles which guide a court in granting or refusing amendments to pleadings as set out in the commentaries on these rules as contained in Chitaley & Rao on The Code of Civil Procedure (2nd Edn.) Vol. II at p. 1301 et seq., the court stated: " ... amendments to pleadings sought before the hearing should be freely allowed, if they can be made without injustice to the other side ... " In England, amendments of pleadings are allowed at any time before judgment. In Loutf' Vs Czarnikow Ltd [1952] 2 All ER 823 it was held as follows: 10 0 ~-·•.. ... ~ .~,,.·\.·-. ,·. "Unless there is good ground and strong justification for doing so, the court should be reluctant to grant amendments of pleadings after close of the case but before judgment ... " The foregoing passage in Loutf Vs Czarnikow Ltd (supra) was followed by the Court of Appeal in James Kabalo Mapa/ala Vs British Broadcasting Corporation [2004] TLR 143 (also reported in [2002] 1 EA 132) when discussing the applicability of Order VI Rule 17 of the Civil Procedure Code and the meaning of the phrase "at any stage of the proceedings" in the rule. The Court of Appeal held at page 147 as follows: "While it is not disputed that Order VI Rule 17 of the Civil Procedure Code allows a party to amend pleadings, the expression 'at any stage of the proceedings' should not be extended to cover the time after judgment. Such an interpretation ... would lead to absurdity." And, relying on the Loutf case (supra), the Court of Appeal went on to set the legal position in this jurisdiction as follows: "... the legal position in our country is that amendment to pleadings is not allowed after delivery of judgment." 11 . Put differently and employing the maxim expressio unius est exclusio alterius (the expression of one thing is the exclusion of another - also termed inclusio unius est exclusio alterius or enumeratio unius est exclusio a!terius- to the foregoing conclusion of the Court of Appeal, it can also be interpreted to connote that the legal position in this jurisdiction is that amendment to pleadings is allowed at any time before delivery of judgment. (See also: the persuasive decisions of General Manager EAR & HA Vs Thierstein [1968] 1 EA 354 and Kuloba Vs Oduo/[2001] 1 EA 101 of the High Court of Kenya and Gaso Transport Services {Bus} Ltd Vs Obene [1990-1994] 1 EA 88 (Supreme Court of Uganda), Mbayo and another Vs Sinani [2007] 2 EA 306 (Court of Appeal of Uganda) and Central Kenya Ltd Vs Trust Bank Ltd [2000] 2 EA 365 (Court of Appeal of Kenya), to mention but a few]. For the avoidance of doubt, the Mapa/a/a and Mbayo cases in, respectively, Tanzania and Uganda were decided after the entrenchment of the ADR provisions in the respective legislation. The legal position in this jurisdiction, like in England, Kenya and Uganda and other Common Law Jurisdictions, is therefore that amendments to pleadings is allowed at any stage of the proceedings if such amendments can be made without injustice to the other side. The term "at any stage of the proceedings" as used in Order VI Rule 17 of the Civil Procedure Code, does not extend to cover the time after judgment. That is to say, courts of law in this jurisdiction will not hesitate to freely allow amendments to pleadings at any stage of the proceedings provided that it is before judgment and that such amendment or amendments will not occasion any 12 injustice to the opposite party. I think this sufficiently explains why I allowed Mr. Mushokorwa to amend the Plaint as prayed. Now back to the crux of the matter. Black's Law Dictionary defines the term defamation as simply "the act of harming the reputation of another by making a false statement to a third person". A classic definition is perhaps that of the learned Authors of Winfield and lolowicz on Tort which defines the term as follows: "Defamation is the publication of a statement which tends to lower a person in the estimation of a right-thinking member of society generally, of which tends to make them shun or avoid that person" In the light of the foregoing definition, it is obvious that in order to prove a tort of defamation, there must be proof to the effect that the statement was defamatory, that it referred to the Plaintiff and that it was published; that is communicated to a third party. Let me, firstly, in a bid to resolve the first and second issues which I will tackle together, for they are interrelated, test the foregoing ingredients to the present case. The letter complained of and which has been quoted in extenso above, referred to a person it claimed was masquerading as being involved in the 13 .Mafinga-Mgololo road project as being a conman, womanizing, boozing between bars and that that person claimed to have been stolen of his mobile phone at one guest house and demanded to be compensated for the mobile stolen. The letter also stated that it was feared that that person was involved in spreading HIV and AIDS in his frolics. The evidence led by the Plaintiff sufficiently establishes that the Plaintiff was the one who was in the road project referred to and was the one whose cell phone was stolen and demanded to be compensated of his stolen mobile phone by the first Defendant. The letter was undoubtedly an innuendo to the Plaintiff. I am satisfied that the letter complained of, at law, sufficiently identified the Plaintiff as the person referred to in the said letter. Some people read the letter complained of. The Plaintiff testified that he was brought to light on the defamatory letter by his colleagues at Zigzag Restaurant in Mafinga at which they used to take their meals. The letter was, as well, read by his long time friend Lazaro Kitundu PW2 who testified that he was, at some point, involved in resolving the Plaintiff's family squabble caused by the publication of the letter and that PW2 himself shun away from the Plaintiff as a result of the published letter. Another person who read the letter was Timothy Gideon Kahola PW3 who worked under the Plaintiff in the Mafinga-Mgololo road project. The letter also came to the knowledge of Mohamed Mbelwa PW4 who used to frequent Ambassador Pub; the property of the Plaintiff. This evidences the fact that the letter was, undoubtedly, published to third parties. 14 .' !' From the evidence on record, I am satisfied that the letter was, in its ordinary and natural meaning and/or by innuendo, defamatory of the Plaintiff and that it was published to third parties. This answers the first limb of the first issue and the second issue in the affirmative. That is; the publication made by the second and third Defendants as carried out on Nipashe Newspaper dated 26.03.2003 was made against the plaintiff and that it was defamatory of him .. I so find. The second limb of the first issue · respects involvement of the first defendant in the publication of the letter I have just found to be libellous of the plaintiff. Perhaps the reason why the first defendant was made a party to this suit is found in the re-examination of the Plaintiff. In re- examination, the Plaintiff states that the first Defendant is responsible for the deeds of his employees so as to clear the name of his business. This suggests that the Plaintiff is aware that the first Defendant might not have directly been the author of the libellous letter but his employees. As I perceive, he seems to say, as an employer, the first Defendant is vicariously liable for the deeds of his employees. That, if I understood well correctly what the Plaintiff conceives, is correct: an employer is responsible for the torts committed by his employee or employees provided that such employee or employees were not on frolics of their own when committing such a tort. That is to say, an employer will be liable for the torts committed by his employee or employees if, at the time of commission of such a tort, such employee or employees were in the course of 15 employment. Is it the case in the present instance? This is the question to which I now turn to tackle. Indeed the letter is written in anonymity. But it refers to the authors as having connections with the guest house in which the Plaintiff was putting up and where, inter a/ia, a mobile phone valued at Tshs. 80,000,000/ was stolen. Let some paragraphs of the letter paint the picture: "Kufika kwenye gesti ambayo sisi tunaoandika inatuhusu alilipa pesa ya siku tano hapo tukamuona kila siku yupo baa anakunywa na kuendelea na starehe zake. Baada ya hapo aliongeza mkopo wa siku tano akisema atalipa siku ya kuondoka cha kusikitisha siku mbili kabla alizua ameibiwa simu yake ya thamani sh. 80,000 asubuhi wakati anapiga mswaki. Kwa hiyo anataka alipwe mara moja. Sisi tukamwambia sisi hatuna kawaida ya kuingia chumba cha mteja hadi alete funguo mapokezi. Kwa hiyo muda huo aliosema ameibiwa simu, funguo bado alikuwa nazo kwa hilo jambo sisi hatuhusiki hata kidogo wala hatuwezi kulipa pesa hizo." [Bold supplied] But the question which I have posed to myself is: does this sufficiently establish that the letter was authored by the first Defendant or his employees? Or, put differently, does the letter, on a balance of probabilities, eliminate the possibility that it could have been written by any person other than the first Defendant or his employees? I must admit that this question has posed to me some anxiety. However, having 16 subjected to strict scrutiny the evidence in totality and with a sober mind, with respect, I think, the possibilities that any Tom, Dick and Harry could have written the letter, on a balance of probabilities, are not eliminated. I say so knowing full well that the standard of proof in this case, and particularly on this question, is on the preponderances of probabilities. It is on this very standard of proof that I am satisfied that it weighs heavily against the Plaintiff. Let me demonstrate. The first Defendant denies to have authored the letter complained of. He denies the letter to have authored by his employees as well. He brought witnesses to support this and, in my view, he has sufficiently discharged his burden. And as if to clinch the mater, the Post Office Box used by the anonymous authors of the letter complained of, as per evidence, was not rented to the first Defendant. DW3, an employee of Tanzania Postal Corporation, told the court and the court finds her testimony plausible, that Post Office Box 212, Mafinga (which was used as the address of the anonymous authors), was not rented to the first Defendant. It was rented to one Daud Mapinga of Mafinga. The first Defendant's was P. 0. Box 208, Mafinga, so she testified and the court, once again, feels her testimony plausible. In the circumstances of this case, and for the reasons stated above, I feel that it will be very unsafe to take the general assumptions like the use of the phrases in the letter such as "kufika kwenye gesti ambayo sisi tunaoandika inatuhusu" or "sisi hatuhusiki hata kidogo wala hatuwezi kulipa pesa hizo" or "sisi tukamwambia sisi hatuna kawaida ya kuingia chumba cha mteja hadi alete funguo mapokezi" as conclusively establishing and proving that the authors of the letter complained of were 17 employees of the first Defendant. Taking such general assumptions as correct will, in my considered view, leave justice crying. In the premises, I would answer the second limb of the first issue in the negative. That is to say, on a balance of probabilities, the first Defendant was not involved in the publication of the libellous letter complained of. The third issue is whether the Defendants were justified to make that publication. Having in mind the finding and answers to the first issue; that the first Defendant was not involved in the publication of the defamatory letter, the term "Defendants" as appearing in the third issue should be read and interpreted to make reference to the second and third Defendants only. The letter complained of as being libellous appeared under the page of the Nipashe Newspaper containing, inter a/ta, letters to the editor. This connotes that the letter was supplied to the editor so that it could be published in the Newspaper. What the second and third Defendants did was to publish an opinion of their readers. Unfortunately, the second and third Defendants did not defend this suit for the reasons stated above. And the situation is exacerbated by the fact that the first Defendant who defended the suit has not pleaded any of available defences to defamation cases as is usually the case in suits of this nature. What the first Defendant has done is a total denial of any knowledge of, and any involvement whatsoever in, the publication of the allegedly libellous letter. However, the third issue, as framed, prompts me to decide whether or not the second and third Defendants were justified in publishing the allegedly libellous letter in their Newspaper. I think the term "justified" here is used as a term of art as envisaged by the defences 18 " in defamation cases generally; it does not bear, I think, an ordinary meaning. Rather, the term makes reference to the defence of justification which is sometimes available to cases of this nature. I am alive to the fact that the letter was supplied to the editor whose normal duty was to publish the opinion of his readers. As already alluded to above, the letter complained of was published in the Newspaper on a page which reads "Maoni/Barua" which simply means, as per my free translation, "Opinion/Letters [to the editor]". But it is not disputed that the author or authors of the letter did not disclose their names; it was, and still is, an anonymous letter. It did not overtly show that it was authored by the second or third Defendants. Neither has it been established that it was authored by the employees of the first respondent. The fact that the authors of the libellous letter did not disclose their names should have been taken as a warning signal to the second and third Defendants to treat the same with great care. The second and third Defendants' act of publishing the letter whose contents included accusing the person referred to therein as spreading HIV and AIDS without verifying who the authors were, was tantamount to jumping onto a lot of barbed wires. At the time, there was a high degree of stigma of members the society to those suffering from the scourge. In the premises, the second and third Defendants ought to have been very careful in publishing the letter. They ought to have taken steps to verify who the authors were, whether the letter complained of was signed or not and things falling in that basket. It does not appear to me, honestly, that the second and third 19 Defendants made the publication of the allegedly libellous letter bona fide. To conclude on this point, from the plaintiff's oral and documentary .evidence supported by three witnesses, I am satisfied in my mind that the words published by the second and third Defendants amounted to defamation of the Plaintiff with no justification whatsoever and that that publication injured the plaintiff's reputation. The fourth issue is whether the Plaintiff suffered any damages. I have somewhat touched on this issue above when resolving the second and third issues. As already stated above, some people read the letter published in the Nipashe Newspaper of 26.03.2003. The letter was read by the Plaintiff's colleagues who he met at Zigzag Restaurant in Mafinga at which they used to take their meals and these were the o·nes who made him aware of it. It was, as well, read by his long time friend Lazaro Kitundu PW2 who testified that he was, at some point, involved in resolving the Plaintiff's family squabble caused by the publication of the letter and that PW2 himself shun away from the Plaintiff as a result of the letter. The Plaintiff testified that there was a spillover effect to his business as well which dwindled after the publication of the letter. On the business aspect the Plaintiff was supported by Mohamed Mbelwa PW4 who used to soothe his soul by a bear or two at Ambassador Pub; the property of the Plaintiff and used to see a lot of customers there, but that after the publication of the letter, the attendance of customers has gone down. According to PW4, customers have shun away from drinking at Ambassador Pub because it was said the proprietor Martin Nashokigwa; the Plaintiff herein, was a conman. The Plaintiff also testified that he 20 never secured any construction tender as a result of the libellous letter. That he missed one from TANROADS Iringa and some in Mbeya Region. From the testimony of the Plaintiff and that of PW2 and PW3, I am satisfied that the Plaintiff suffered damages as result of the publication of the libellous letter. PW2 shun away from him and his marriage shook. The fourth issue is therefore answered in the affirmative. The last issue respects reliefs to which the parties are entitled. The Plaintiff claims for, inter alia, general damages at a tune of Tshs. 250,000,000/ "with interest from the date of the suit to that of payment." He also prays for special damages of Tshs 280,000,000/, costs and any other relief this court deems just to grant. I hasten to state at the outset that the prayer by the Plaintiff to the effect that general damages should be paid with interest from the date of the suit to that of payment is not legally maintainable. As was held by the Court of Appeal in Saidi Kibwana And General Tyre E.A. Ltd Vs Rose Jumbe [1993] TLR 175, interest on general damages is only due after the delivery of judgment because then the principal amount due is known. And to argue this point a little bit further, the provisions of section 29 of the Civil Procedure Code, Cap. 33 of the Revised Edition, 2002 require that interest should be paid from the date of judgment. It reads: " ... without prejudice to the power of the Court to order interest to be paid up to the date of judgment at such rates as it may deem 21 f •.. . t;. reasonable, every judgment debt shall carry interest at the rate prescribed from the date of the delivery of the judgment until the same shall be satisfied." [Bold supplied]. The court's power to grant interest before judgment, as appearing in the first part of the above quote, which discretion does not extend to the period after the judgment is delivered, is reserved for special damages only. That this is the law was stated in the Saidi Kibwana case (supra) at page 191 as follows: "The Court has a discretion to award interest for the period before the delivery of judgment only on special damages actually expended or incurred, but even this at such rate as the Court thinks reasonable. This discretion does not extend to the period after the delivery of judgment." As for special damages, which the Plaintiff pegs at Tshs. 280,000,000/=, it is the law in this jurisdiction founded upon prudence that special damages, being exceptional in their character, must be pleaded specifically and strictly proved - see: Zuberi Augustino Vs Anicet Mugabe [992] TLR 137, Maritim and Another Vs Anjere [1990-1994] 1 EA 312 and Stanbic Bank Tanzania Limited Vs Abercrombie & Kent {TJ 22 Limited, Civil Appeal No. 21 of 2001 (unreported), to mention but a few. I think it was Lord Macnaghten who laid down the principle in Stroms Bruks Aktie Bolag Vs John Peter Hutchinson [1905] AC 515 at page 525 in the following terms: "Special damages on the other hand are such as the law will not infer from the nature of the act. They do not follow in the ordinary course. They are exceptional in their character and, therefore, they must be claimed specifically and proved strictly." [Emphasis supplied] The above principle, which is often quoted in common law jurisdiction, was followed by the Court of Appeal as a correct statement of the law in the Stanbic Bank case (supra) in which, reiterating its earlier position in the Zuberi Augustino case (supra) in which it held that special damages must be specifically pleaded and proved, the Court held: "Although not as comprehensively expressed, this Court in one of its decisions - Zuberi Augustino v Anicet Mugabe, [1992] TLR 137, at page 139 said:- It is trite law, and we need not cite any authority, that special damages must be specifically pleaded and proved." 23 In the case at hand, the Plaintiff pleaded special damages in the Plaint and attempted in evidence to justify the claim. However, unfortunately, the attempt fell short of strict proof of the same. His allegation that he could not secure any tender after the publication of the libellous letter seems to me far too remote. Let me pause here to think. The Plaintiff was an employee of the Company which sought such tenders. How can he, as an employee, be held to suffer damages when his employer misses such tenders? I cannot imagine a situation where an institution would refrain from awarding a tender to a company whose one of its employee is of such behaviour as explained in the allegedly libellous letter. With due respect, I find the connection as far too remote. It is my view that the Plaintiff did not strictly prove how he suffered special damages when, if at all, his company missed those tenders. Likewise the loss of business at Ambassador Pub was not well substantiated. The Plaintiff did not state how much he earned before and after the publication of the libellous letter. He did not even produce books of accounts which would show the trend of his business shining before the publication and dwindling after such publication as he claims in evidence. With due respect, in the light of the foregoing analysis, it is my well considered view that the Plaintiff's proof of special damages at a tune of Tshs. 280,000,000/= did not fall within the realm of strict proof as required by the law. I wish to associate myself with an identical situation in the decision of this court of Rugarabamu Archard Mwombeki Vs Charles Kizigha & 3 others [1984] TLR 350. In that case, the plaintiff tried to 24 bring in some figures in order to impress upon the court as to how much he used to earn before the publication of an offending article but he never told the court as to how much he was earning in his various businesses after the publication of the libelous article nor did he produce his books of accounts to prove what actually he earned in his various businesses before the publication of the offensive article. This court - I quote from the headnote - held: "Since the plaintiff has not told the court how much he has been earning in his various businesses before and after the publication of the offending article, assessment of damages cannot be based on his unsubstantiated figures " I am satisfied that the words published by the second and third Defendants in the Nipashe tabloid of 26.03.2003, in their ordinary and natural sense, amounted to defamation and that they were, at law, capable of referring to the Plaintiff. I also find that the second and third Defendants had no justification whatsoever in publishing the same and that having not established who the authors of the letter were, but published it anyway, the second and third Defendants acted recklessly and that they should be held liable for the reckless actions which ultimately injured the plaintiff's reputation. I, consequently, find the second and third Defendants liable. I find the first Defendant not liable. 25 In assessing the general damages, I have taken into account the nature of the publication, the status of the plaintiff in the society and the reckless manner in which the second and third Defendants conducted themselves in publishing the libellous letter. Taking into account the devaluation of our currency from the date this suit was filed in 2006 to the present, I assess the general damages at one ·hundred million shillings only (Tshs. 100,000,000/= ). In the upshot, I hereby dismiss the claim for special damages against all Defendants and dismiss all the remaining claims against the first Defendant. I enter judgment for the Plaintiff against the second and third Defendants jointly in the surn of one hundred million shillings (Tshs. 100,000,000/=) as general damages with costs and interest of 10% per annum from the date of delivery of this judgment until the same shall be satisfied in full. Order accordingly. DATED at IRINGA this 19th day of August, 2014. J. C. M. MWAMBEGELE JUDGE 26