cosmas mwaifwani vs editor of dira ya mtanzania another 2014 tzhc 2364 29 december 2014

IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM MISC. CIVIL APPLICATION NO. 90 OF 2013 COSMAS MWAIFWANI................................. APPLICANT V.

THE EDITOR OF DIRA YA MTANZANIA....................................1st RESPONDENT DIRA NEWSPAPER CO. LTD.............. 2nd RESPONDENT

RULING Shangwa, J. Upon being worried that the Respondents might embark on further publications of defamatory matters against him in their Dira News Paper, Mr. Cosmas Mwaifwani who is the Acting Director General of the Medical Stores Department MSD through the legal services of Mr. Mohamed Tibanyendera, Advocate has filed an application for a temporary injunction to restrain them, their agents, workers, employees, legal representatives or assignees from publishing or circulating any defamatory stories against him personally or as Acting Director General of Medical 'Stores Department pending the final determination of the main suit namely High Court Civil Case No. 44 of 2014. > Counsel for the Respondents, Mr. Mrindoko opposed this application. He submitted that the application is devoid of merit. He stated that what was published by the Respondents in their Dira News Paper against the Applicant is true and that the Respondents have a right to express themselves and that their right to do so is protected under the Constitution of the United Republic. Mr. Mrindoko stated further that what was published is in the Public interest and that public interest outweighs private interest. That as the Respondents have pleaded qualified privilege and fair comment in their defence, the injunction sought by the Applicant should not be granted. In support of his statement above, Mr. Mrindoko referred the court to the case of Cheserem V. Immediate Media Service (2000) 2 E.A. P.

371. In this case, it appears to me that unless the injunction sought by the Applicant is granted, the Respondents who have pleaded qualified privilege and fair comment in their defence are most likely than not to make further publications of defamatory matters against the Applicant that he is in the pockets of big business Indians whom he has facilitated to get tenders forimportation of medicines in the country. Therefore, I hold that his application has merit. In my view, the case of Cheserem V. Immediate Media Service (2000) 2 E.A. P. 371 relied upon by the Respondents is of no avail. It is of no avail because I do not see any fair comment in the publications made by the Respondents against the Applicant in their Dira News Paper. Also, I do not see any Public interest in those publications. This is because tenders for importation of medicines in the country are always advertised. Tenders are not granted on racial basis. Whomsoever becomes the highest bidder whether African, Chinese or Asian gets the tender. I do not think that the Public has any interest to know that the Asians have contributed money to make sure that the Applicant is promoted by the President from the post of Acting Director General to the post of Director General of MSD. What the Public is interested in is to get sufficient medicines for combating diseases in the country. In other words, the Public is not

interested to know as to whether or not without the Applicant being appointed as Director General of MSD, no Indian will win any tender for importation of medicines in the country. For these reasons, I hereby grant the temporary injunction sought by the Applicant. Each party to bear its 29/12/2014 Delivered in the presence of Mr. Aron Lesindamu for Mr. Mohamed Tibanyendera for the Applicant this 29th day of December, 2014 and in the absence of the Respondents. A. Shangwa

JUDGE 29/12/2014