20160830 TZHC Mwanza2

IN THE HIGH COUART OF TANZANIA IN THE DISTRICT REGISTRY AT MWANZA HIGH COURT CIVIL CASE NO. 19 OF 2014 MANIN! MARWA MANG'ERA ........................................ PLAINTIFF VERSUS JULIUS GAMBOS ................................................. 1 ST DEFENDANT PAULP MKAMA ................................................... 2ND DEFENDANT MARWA WAMBURA ............................................. 3RD DEFENDANT WANGSON KI GI NGA ........................................... 4TH DEFENDANT KAZABURA MABULA ............................................ 5TH DEFENDANT MLAKI MRAMBA .................................................. 6TH DEFENDANT JUDGMENT BUKUKU, J.: The plaintiff is a natural person, a . pastoralist and a resident of Mekomariro Village at Bunda District, Mara Region. The defendants are army officers employed by the Tanzania People's Defence Forces (TPDF) as soldiers at 253 KJ Kiabakari Butiama District, Mara Region'1--_ 1 IJ The plaintiff's claims against the defendants jointly and severally is the payment of T.shs. 250,000,000/= being punitive general damages for defamation; costs of the suit to be borne by the defendants and any other or further reliefs that this honourable court may deem fit to grant in the circumstances of the case. Brief facts of this case are that, sometimes on 20th November, 2008, the plaintiff herein contracted a civil marriage with one Saada Joseph Kitoa, who is employed by the Tanzania People's Defence Force (TPDF) as a soldier attached to 253 KJ Kiabakari, Butiama District in Mara Region, and the two were blessed with one issue named Noel Manini Mang'era. According to the record, the plaintiff's wife had a house within the barracks and as such, the plaintiff, being a civilian, was issued with an identity card, identifying him as a spouse of the said Saada Joseph Kitoa, which allowed him to enter and stay with his family at the barracks. · As it transpired, on 2nd October, 2010, the plaintiff's wife left her home at the barracks and proceeded to Msata, coast region in order to . prepare herself for an official trip to Sudan leaving behind their son w i ~ 2 house help. According to the plaintiff, following his wife's departure on the fateful day, he went to the barracks in order to pick up their son so that he could take care of him at his home village. When he was about to leave , with the child from the barracks, the defendants willfully refused him exit from the camp, he was put under arrest and was prevented from taking his child away from the camp. It is also the plaintiff's allegation that, the defendants declared him to be a thief and that he went there for purposes of stealing the child. It is the plaintiff's contention that, the defendant's defamatory words of naming him publically to be a thief of other people's children has brought him to public scandal, contempt, hatrade, redicule, and degradation which has resulted into being shunned by right thinking members of the society. As such, the plaintiff is now claiming from the defendants jointly and severally T.shs. 250,000,000/= being punitive general damages for defamation~ 3 Though served several times, including being served by substituted services, all the defendants never made appearance. At the request of the plaintiff's advocate, one, Mr. Magoiga, the suit was heard exparte. Only two issues were filed for determination in this case, and these were:- 1. Whether the plaintiff was defamed by the defendants. 2. To what reliefs are parties entitled to. When the case was called on for hearing, the plaintiff called two witnesses, Salum Juma Mirambo (PW2) and Mangoha Tongora (PW3). Both these witnesses told his court how on the fateful day they saw the plaintiff arrested at the camp by the defendants, and that he was accused of stealing other people's children, something which humiliated him. Having carefully studied this case and before I proceed, I have found it apposite to first satisfy myself as to whether, this court is clothed with jurisdiction to hear and determine this case. I say so because, according to the plaint, the plaintiff herein prays for the following o r d e r ~ 4 (i) Payment of T.shs. 250,000,000/= cash, being punitive general damages for defamation. (ii) Costs and (iii) Any other or further relief (s) this honourable court may deem fit to grant. (Emphasis mine). Stated simply, ''jurisdiction ✓, means the power or authority of a court of law or Tribunal to hear and determine a cause or a matter. It is the power to entertain, deal with and decided a suit, an action, petition or other proceedings. In other words, by jurisdiction, is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. I am aware that, the question of jurisdiction is not merely one of form. It is fundamental. As such, a defect of jurisdiction goes to the root of the matter and strikes at the authority of a court to pass a decree. Any trial conducted by a court with no jurisdiction to try the same however precisely certain and technically correct, is null and void and the validity therefore can be challenged at any stage (See: Melisho Sindiko V. Julius Kaaya [1977] LRT No. 1 8 ) r 5 Jurisdiction is everything and without it, a court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. The issue jurisdiction once raised by a party or by a court on its own motion must be decided forthwith on the · evidence before the court. It is immaterial whether the evidence is scanty or limited. As demonstrated herein, what the plaintiff is claiming is punitive general damages. My understanding of punitive damages or exemplary damages is that, punitive or exemplary damages are awarded not to compensate the plaintiff but to punish the defendant and to deter the defendant from similar outrageous conduct in future. This kind of damage can be allowed in three categories of cases. The first category is oppressive, the second is arbitrary and the third being unconstitutional action of the Government· or its servants, in which the plaintiff herein is claiming. Much as unconstitutional actions e.g. wrongful arrest by a servant of the government authorizes grant of exemplary damages, it i s ~ every case against the government or its officers that exemplary damages should be allowed. The reason being that, if the power has been exercised bona fide and honestly, there cannot be any occasion for exemplary damages being awarded notwithstanding that unintended injury was caused to someone. Award of exemplary damages can also be moderate. The conduct of the parties throughout the proceedings would also be relevant consideration in assessing such damages. Normally this kind of damage is only awardable where there are aggravating features about the case which would result in the plaintiff not receiving sufficient compensation for the injury suffered if the award were restricted to a basic award. Normally, -aggravated damages, though compensatory, do in fact contain a penal element. When a case is made out for award of this kind of damage especially when there has been oppressive or arbitrary behaviour by a police or government officer, it should be kept in mind that exemplary damages should be awarded if, and only if, it is considered that the compensation awarded by way of basic damages is in the circumstances an inadequate punishment for the defendant. In other words, pu:J--- 7 damages are awarded in addition to actual damages, which normally compensate a plaintiff for the loss suffered due to harm caused by the defendant, such as compensatory, nominal or restitutory damages. Punitive damages are never awarded alone by themselves and, like general damages, they are awarded at the discretion of the court. Considering the above foregoing and since punitive damages are in the form of general damages it is obvious that, they do not confer jurisdiction on the court, it is obvious that, this court is not vested with jurisdiction to determine this matter. It is trite that jurisdiction need not be fished. That is why the jurisdiction of the court has to be spelt out clearly in the plaint whether it is pecuniary, territorial, appellate, revisional or other types of jurisdictions conferred by statutory provisions. Even if I were to decide otherwise, still this case has to fail, for the following reasons: In order to prove his case, the plaintiff was required to satisfy the court that the defendants defamed him by calling him a thief and that as a result, he suffered injury or mental a n g u i s h ~ 8 Defamation, as I understand, whether libel or slander, is the making public of a false statement about a person that causes damage to their reputation. Broadly, there are four elements that the plaintiff is required to prove in a defamation case. These include: (i) The statement uttered or written must be false; (ii) the statement must be made available to someone other than the person whom the statement was made; (iii) that, in publishing or uttering the statement, the defendant was acting with malice or at least to have a total disregard for whether the statement is true or not, and (iv) that, the person about whom the defamatory statement is made must be damaged by the said statement or that he suffered mental anguish. (See: Amina Mpimbi V. Bamadhani Kiwe; [1990] TLR 6, and Jeremiah Kamama V. Bugomola Mayandi [1983] TLR 123) to mention a few. It is unfortunate that the plaintiff has failed to do so. The reason being that, the plaintiff did not give a full account of everything that concerns his case. In civil cases, the burden of proof normally is on the plaintiff. Section 110 (1) of the Law of Evidence Act, Cap 6 R.E. 2002 statesr 9 l\ I 11 Whoever desires any court to give Judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist'~ In his testimony, the plaintiff claimed that he was married to one Saada Joseph Kitoa and that they were blessed with one issue, Noel Manini Mang'era. Unfortunately, the plaintiff did not produce as evidence a marriage certificate or a birth certificate to prove the same. He also told the court that he had an identity card which allowed him to enter into the defence barracks where his wife lived. That identity card was never tendered in court. To crown it all, the circumstances under which the plaintiff went to take their son are questionable because, under normal circumstances, one could have expected that, the plaintiff and his wife could have sorted out the issue of the child's up keep before the wife left for Sudan. It doesn't get into one's mind that a child of such tender age (3 years) was left with a house help while the mother is away, and the plaintiff waited until his wife left, and then he went to collect the child. The existence of such state of circumstances, which assuming them to be true, would reasonably lead an ordinary prudent and cautious man, p l a c e d ~ . 10 · position of the accusers, to the conclusion that the person accused was probably guilty of the offence imputed. In other words, the defendants might have acted bona fide in arresting the plaintiff under such circumstances. They might have reasonable and probably cause to believe that, the plaintiff was taking the child against his mother's wishes. In this case, the plaintiff failed to prove malice on the part of the defendants under such circumstances. He also failed to prove the magnitude of the mental anguish he had suffered. From the above therefore, what I can regrettably state is that, the plaintiff has miserably failed to prove his case to the standard required. For that matter, the suit is dismissed in its entirety. Order accordingly. JUDGE Delivered at Mwanza This 30th August, 2016. 11