JAMES FRANCIS MBATIA V

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE SUB-REGISTRY OF DAR ES SALAAM)

AT DAR ES SALAAM CIVIL CASE NO. 59 OF 2023

BETWEEN JAMES FRANCIS MBATIA-------------------------------------PETITIONER AND JOSEPH ROMAN SELASINI---------------------------------1ST RESPONDENT MWANANCHI COMMUNICATION LIMITED---------------2ND RESPONDENT THE EDITOR OF THE CITIZEN NEWSPAPER--------------3RD RESPONDENT JAMHURI MEDIA LIMITED---------------------------------4TH RESPONDENT

GLOBAL PUBLISHERS AND GENERAL ENTERPRISES LIMITED-------------------------------------5TH RESPONDENT NASIBU ABDUL JUMA ISSAACK T/A WASAFI TV----------------------------------------------------6TH RESPONDENT

JUDGMENT Date of last Order: 28th February 2025. Date of Judgment: 28th February, 2025 A.A. MBAGWA, J: 1 This is a defamation case in which the petitioner is purportedly tormented by the statements which were allegedly uttered by the 1st respondent and published by the 2nd to 6th respondents. As such, the petitioner has, by way of a petition in terms of the provisions of the Media Service Act, Act No. 12 of 2016, and the Media Services (Defamation Proceedings) Rules, 2019, instituted the present suit against the respondents severally and jointly claiming for the following reliefs: a) A declaratory judgment and decree that, the information disseminated by the respondents against the petitioner herein are false and damaging information; b) A declaratory judgment and decree that, the information disseminated by the respondents against the petitioner herein are defamatory statements to the petitioner; c) A declaratory judgment and decree that, the information disseminated by the respondents against the petitioner herein lowering the petitioner's reputation to his family, his career as a reputable politician, his personal reputation, and the world at large; 2 d) This Honourable Court be pleased to issue an order compelling the respondents to make a public apology on the false and defamatory information disseminated against the Petitioner herein through the same media. e) This

Honourable Court be pleased to issue an order against the respondents jointly and severally for the payment of TZS 10,000,000,000/= (Say Tanzania shillings Ten Billion) being compensation for the false and defamatory information disseminated by the respondents against the petitioner. f) This Honourable Court be pleased to issue an order against the respondents jointly and severally for the payment of TZS 1,000,000,000/= (Say Tanzania shillings One Billion) as general damages for mental distress and psychological torture suffered by the Petitioner herein. g) This Honourable Court be pleased to make an order for the respondents to retract the false and defamatory information disseminated against the petitioner on the websites, social media, blogs, newspapers, and YouTube channels. 3 h) This Honourable Court be pleased to make an order for the permanent injunction against the respondents, their agents, servants, and any other person acting under their authorization from disseminating false and defamatory information against the petitioner. i) Payment of decretal sum in paragraphs (e)&(f) above at the court rate of 12% per annum from the date of judgment till the date of full satisfaction of the decree; j) Costs of the petition be paid by the respondents; k) Any other reliefs this Honourable Court may deem just to grant. To comprehend the nitty-gritty of the matter, it is

worthwhile to provide the factual background of the matter albeit in a nutshell. The petitioner is a Civil Engineer in Built Environment, a politician, and a former member of the political party named National Convention for Construction and Reform- Mageuzi which is famously known by its acronym "NCCR-Mageuzi. Prior to 24th September 2022, he was the National Chairman of the party. It is alleged that on 24th September 2022, the petitioner was expelled from the membership of “NCCR-Mageuzi” and removed from the position of the 4 National Chairman following the resolution of the party’s national congress which was held at St. Gasper Conference Centre within the City of Dodoma. Before his dismissal from NCCR-Mageuzi, the petitioner has been a member of the said political party for more than thirty (30) years commencing from 1st July 1992 with a membership card No. 000006 (Exhibit P2). The petitioner held various posts of leadership within and outside the party at the national level. Particularly; he was elected a member of parliament for Vunjo Constituency twice that is, in 1995 and 2015 (Exhibit P4 and P5, respectively). Further, in the year 2012, he was appointed a member of parliament by the then President of the United Republic of Tanzania (Exhibit P6). On his part, the 1st respondent is also a politician, a member of the NCCR- Mageuzi, and a former member of parliament for

Rombo Constituency within Moshi District in Kilimanjaro Region from 2010-2020. Presently, the 1st respondent is the national chairman of the NCCR- Mageuzi. As deciphered from the evidence, the petitioner and 1st respondent have been friends for 5 quite a while and hail from the same area namely, Rombo District. It is also undisputed that the petitioner invited the 1st respondent to NCCR-Mageuzi and appointed him a member of the executive committee of the party. However, in the course of business, the duo parted ways thereby resulting in the petitioner’s dismissal. The 2nd to 6th respondents have been impleaded in this petition on the ground that they disseminated defamatory information that was uttered by the 1st respondent. The 2nd respondent is a limited liability corporation that owns various print and online media including "The Citizen Newspaper" whilst the 3rd respondent is the Editor of “The Citizen”, a daily newspaper with widespread circulation within and outside the country. The 4th respondent is the publisher of “Jamhuri Newspaper” a daily newspaper with widespread circulation in the country. The 5th respondent is a private limited liability company dealing with the publishing of weekly Swahili newspapers and the owner of an online television known as Global TV. The 6th respondent is a natural person, trading as WASAFI TV, licensed for airing radio and television

broadcasting. 6 It is alleged by the petitioner that on the 21st day of May 2022 at the Salvation Army Conference Centre located at Kurasini within Temeke Municipality in Dar es Salaam Region, the 1st respondent knowingly uttered false and defamatory information that injured the reputation of the petitioner. The said information was published and disseminated via a YouTube Channel known as MwanaHalisi TV. The allegedly defamatory information was to the effect that the petitioner, after the general elections results of 2020, started lobbying to be appointed by the President as a member of parliament in the presidential seats but the President refused as a result, the petitioner launched the war against the President. The relevant utterance as deciphered from paragraph (iv) in the amended petition and a video clip contained in exhibit P7 goes as follows: ‘...lakini tumegundua sambamba na malalamiko yake mwenyekiti wetu alikuwa anafanya lobini alikuwa anakwenda kichinichini kuomba ateuliwe kuwa Mbunge katika nafasi kumi za Rais kinyume na maagizo ya chama na kinyume na uamuzi wote wa chama hii si sawa pamoja tunasema uchaguzi haukuwa huru pamoja tunasema kwamba lile Bunge ni Bunge la mchongo lakini yeye 7 anakwenda kichinichini kwenda kufanya mipango ateuliwe ili aingie kwenye hilo Bunge la mchongo na mimi napata mashaka kwamba inawezekana sana kwamba hata kauli aliyoitoa kwa Rais

ni baada ya Rais kumkatalia baada ya Rais kukataa kumteua katika nafasi hiyo...’ It was further contended that on the 24th day of September 2022 at St. Gaspar Conference Centre in Dodoma Municipality within Dodoma City, the 1st respondent maliciously and with no justification or colour of right with intent to tarnish the petitioner’s reputation disseminated false and defamatory information against the petitioner to the effect that the petitioner was involved in the embezzlement of party’s assets. The said information was published by the 2nd respondent on its YouTube channel known as Mwananchi Digital. A portion of the narrative as extracted from paragraph (v) of the amended petition and exhibit P7 reads: ‘...na mkutano huu unaazimia kumvua uongozi MBATIA na kumuondoa katika nafasi na kumuondoa katika chama kumuondoa kuchukua kadi ya chama si ndio jamani mnaazimia hivyo au kuna la tofauti vilevile mkutano mkuu umeazimia kwamba aliyekuwa makamu mwenyekiti ANGELINA MUTAHIWA aondoke kwenye nafasi hiyo ndivyo 8 hivyo au sivyo lakini mmeamua kwamba hatua za kisheria zichukuliwe dhidi ya mali na vitu vya chama ambavyo vilipotea na haraka sana shauri hili lipelekwe TAKUKURU kwa ajiii ya kufanyiwa kazi...’ Moreso, the petitioner lamented that in May 2022, the 1st respondent at an unknown place, disseminated false and defamatory information to the public to the effect that the

petitioner received money from the late President John Joseph Pombe Magufuli to the tune of TZS 500,000,000/= The petitioner continued that, on the 26th day of May 2022 at Sinza within Ubungo Municipality in Dar es Salaam Region, the 1st respondent called a press conference which was aired by the 5th respondent via its online TV known as Global TV Online. In that press, the 1st respondent repeatedly uttered false and defamatory information that, according to the special auditing report of the Controller and Auditor General (CAG), the petitioner sold the party’s assets to wit, a farm at Karege, Bagamoyo that consists of 56 acres, two houses located at Bunju and a house located at Tarime Urban. The said information as portrayed under paragraph (vii) of the amended petition and exhibit P7 reads: 9 "...kwamba kwenye ripoti ya ukaguzi maalumu Mdhibiti na Mkaguzi wa Hesabu za Serikali aligundua kwamba kuna mali za chama ziliuzwa kwa usimamizi wa Mwenyekiti au kwa maneno mengine ziliporwa hazijulikani zilipo lakini msajili hataki kuchukua hatua, kwa mfano hapa Bagamoyo NCCR-Mageuzi ilikuwa na shamba la hekari 56 hapa Kerege MBATIA na wenzake wameliuza sasa unampigia makofi unasema kwamba anaonewa wakati hichi ni kitu dhahiri aah baraza hilo la wadhamini la kwake Una hiyo ripoti ya Mdhibiti na mkaguzi mkuu wa Serikaii, Msajiii anayo Msajiii ameambiwa achukue hatua hataki kuchukua hatua

hata ya kuagiza vikao viitishwe ili kujadili jambo hilo, mfano Bunju hapo tulikuwa na nyumba mbili NCCR-Mageuzi wameuza sasa unasema tusizungumze kwamba kazi ya wanachama ni hei hei hei mtaani halafu kikundi kidogo cha watu eeh kifanye kinavyotaka katika shughuii za chama hapana, pale Tarime Mjini kuna nyumba pia imeuzwa sasa Msajili amepewa ripoti muda mrefu ripoti ni mapendekezo chukua hatua hajachukua hatua hadi sasa hivi sasa sisi tunamtaka Msajili tumemtaka katika baraza tunamtaka sasa na tunaendelea kumtaka achukue hatua kwa sababu hizo Mali sio za viongozi wa NCCR ni za wananchi ni za wanachama wa CHADEMA sasa jamaa wa NCCR-MAGEUZI sasa jamani kwa NCCR kudai mali zake imekuwa nongwa imekuwa vita ni lazima wengine watengeneze vita ili ionekane kwamba wanamtetea mtu ambaye huku anatuhumiwa..." 10 The petitioner continued to allege that, on the 25th day of September 2022 the 2nd respondent published false and defamatory information in its newspaper known as THE CITIZEN which was edited by the 3rd respondent to the effect that the petitioner was involved in the selling of party's properties including farms and houses located at different parts of the country. The relevant excerpt from the said Citizen Newspaper (Exhibit P15) reads;- "...He said Mr. Mbatia is accused of selling party properties including farms and houses located at different parts of the country..." The

petitioner stated that the same information above was published by the 4th Respondent on the 24th day of September 2022 on its website http://www.jamhurimedia.co.tz . A printout from the Jamhuri Media website (Exhibit P16) reads;- "...Ambari amesema kuwa miongoni mwa tuhuma ambazo Mbatia anatuhumiwa nazo ni kuuza mali za chama, ikiwemo mashamba na nyumba katika maeneo mbalimbali..." 11 The 6th respondent, on his part, is accused of publishing a defamatory statement on the 12th day of October 2022 through his YouTube channel known as Wasafi Media by broadcasting the 1st respondent’s interview with the 6th respondent’s journalist namely, Mr. Charles William. In that interview, the 1st respondent alleged that the petitioner disposed of the party’s properties including a farm at Kiromo consisting of 56 acres. Part of the utterances under contest as deciphered from paragraph (xiii) of the amended petition and Exhibit P7 reads;- ‘…ni kwamba James Mbatia kwa kutumia mamlaka yake aliuza shamba letu la chama ekari 56 pale Kiromo na fedha akaweka mfukoni akidai ni mali yake. Lile shamba sio mali yake ni mali ya chama ni mali ya wanachama walichanga shilingi elfu ishirini na tano ishirini na tano hoja hii nasisitiza hoja hii iko katika ukaguzi maalumu uliofanywa na CAG wa nchi hii mthibiti na mkaguzi wa hesabu za serikali za nchi hii alikagua na kugundua kwamba uko ubadhirifu uliofanywa

na James Mbatia kuuza shamba letu alitumwa na msajili alitumwa na serikali alitumwa na CCM alitumwa na mama Samia ...tunamtuhumu James Mbatia kwamba amekuwa akichangisha wanachama na wafadhili wa NCCR Mageuzi mamilioni ya pesa mamilioni hayaingii kwenye chama hayaingii kwenye chama kwa sababu 12 unapochangisha lazima fedha ziingie kwenya akaunti ya chama ili ziweze kuwa ouditedi lakini oudita akija CAG akija anaona matumizi kwenye vitabu anaona matumizi lakini hajui fedha zimetoka wapi yeye Mbatia anasema mimi nimepewa na rafiki Zangu rafiki zako gani ingiza basi kwenye akaunti za chama kwahiyo haijulikani kwamba kama umeleta milioni mia tano ni zenyewe au zilikuwa bilioni moja...’ Based on the foregoing contentions, the petitioner claims that his reputation as a public figure was tarnished as such, he suffered damage. On that account, he instituted the present suit claiming the reliefs as herein above indicated. Upon service, the respondents filed their respective replies to the petition disputing the petitioner’s claims. The 1st respondent adamantly contended that the published information was true saying that the party’s national congress resolved to expel the petitioner from the membership and leadership of NCCR-Mageuzi. He thus disputed the petitioner’s claims and urged the Court to dismiss them. On their part, the 2nd, 3rd, 5th, and 6th respondents admitted publishing

the alleged information. Nonetheless, they denied liabilities saying that they 13 merely reported what was said by the 1st respondent in the NCCR-Mageuzi’s party meetings held on 21st May 2022 and 24th September 2022 as well as the press conferences that were held by the petitioner and the respondent at different dates and places. Similarly, the 4th respondent denied the allegations in the petition in total. On 13th March 2024, when the suit came for mention, this court, after consultation with the parties’ advocates, framed five (5) issues for determination of the dispute as follows; 1. Whether the 1st respondent uttered the alleged information.

2. Whether the uttered information was false.

3. Whether the 2nd to 6th respondents maliciously published the alleged information.

4. Whether the petitioner suffered any damage from the published information.

5. To what reliefs are parties entitled? During the prosecution of this matter, the petitioner was represented by Mr. Daimu Halfan, Mr. Hardson Mchau, and Ms. Hadija Mchau, learned 14 advocates, on the one side. On the other side, the 1st respondent had the services of Mr. Mulamuzi Patrick Byabusha and Mr. Alvan Fidelis, learned advocates whilst the 2nd and 3rd respondents were jointly represented by Mr. Stephen Axweso learned advocate. The 4th respondent enjoyed the services of Mr. Emmanuel Augustino Muga, learned advocate whereas the 5th respondent was represented by Ms. Melania Mashaguri and Mr. Novatus Muhangwa, learned advocates. The 6th respondent had the services of Mr. Richard Limihagati, learned advocate. In a bid to prove his case, the petitioner testified as a sole witness (PW1). The evidence in chief was adduced through affidavits in terms of Rule 10 of the Media Services ( Defamation Proceedings) Rules. PW1’s affidavit was adopted and admitted to form part of his testimony. In addition, the petitioner tendered nineteen (19) documentary exhibits and one (1) physical exhibit (a flash disk) containing video clips of the allegedly defamatory utterances in dispute. For clarity, the petitioner’s exhibits are; affidavit of authenticity sworn by James Francis Mbatia dated 19th June 2023 (exhibit P1), Membership Card of NCCR-MAGEUZI No. 000006 in the name of

James 15 Francis Mbatia (exhibit P2), Staff Identity Card bearing the name of Francis Mbatia No. 001 (exhibit P3), Certificate of Parliamentary Seat for Vunjo Constituency dated 1st November 1995 (exhibit P4), Certificate Confirming Appointment as Member of Parliament for Vunjo in respect of general elections held on 25th October 2015 (exhibit P5), Certificate of Presidential Parliamentary Appointee in the name of James Mbatia dated 7th May 2012 (exhibit P6), A flash disk containing video clips showing the 1st respondent in the meeting on 21st May 2022 (exhibit P7), A printout from Mwanahalisi Website (exhibit P8), A printout of Mwananchi Digital with the heading ‘Kilichojiri kwenye mkutano mkuu wa NCCR- Mageuzi, Mbatia na vigogo kadhaa wakitimuliwa’ (exhibit P9), A printout of Global TV online with the title ‘SELASINI AWALIPUA CHADEMA ISSUE YA UANACHAMA WAKE, AMWAMBIA MBATIA WEWE NI CCM’ (exhibit P10), A Report of the Controller and Auditor General in respect of NCCR-Mageuzi for the financial year 2019/2020 (exhibit P11), A printout from Jambo TV (exhibit P12), A printout from YouTube Channel of Mwananchi Digital with the heading ‘Kilichojiri kwenye mkutano mkuu wa NCCR- Mageuzi, Mbatia na vigogo kadhaa 16 wakitimuliwa’ with the word Newmatic (exhibit P13), A printout from the website of Mwananchi printed on 4th February 2023 (exhibit P14), the Citizen newspaper dated 25th

September 2022 (exhibit P15), A printout from Jamuhuri Media website (exhibit P16), A printout from the Youtube channel of Global TV online with the heading ‘MBATIA ATIMULIWA UANACHAMA NCCR MAGEUZI, TUHUMA za UBADHILIFU WA MALI ZA CHAMA’ (exhibit P17), A printout from the Youtube channel of Wasafi Media (exhibit P18), Register of business names detailed information from BRELA in respect of Wasafi TV with Reg. No. 446069 issued on 20th April 2023 (exhibit P19) and Television Broadcasting Licensees as of September 2021 issued by Tanzania Communications Regulatory Authority (TCRA) (exhibit P20). On the adversary, the 1st respondent paraded two witnesses namely; Joseph Roman Selasin (DW1) and Martin Bernard Mung’ong’o (DW2). The 2nd respondent also called two witnesses namely; Sharon Sauwa (DW3) and Zourha Malisa (DW4) while the 3rd respondent brought one witness namely; Mpoki Thomson (DW5). The 4th respondent paraded one witness namely; Deodatus Mutalemwa Balile (DW7) whereas the 5th respondent had one 17 witness namely; Hilal Daud Mweshemi (DW6) who tendered one (1) physical exhibit (a flash disk) containing two video clips of Mr. Selasini and Mr. Mbatia (exhibit D1). Finally, the 6th respondent paraded one witness namely; William Charles Aman (DW8). Save the DW6, the rest of the respondents' witnesses did not tender any exhibit. As hinted above, the evidence in chief was adduced

by way of affidavits. The petitioner, on his part, recapitulated the contentions in the amended petition and made some clarifications during cross-examination. He conceded that the 2nd to 6th respondents reported the information uttered by the 1st respondent as indicated in the flash disk (exhibit P7). However, PW1 strenuously challenged that the 2nd to 6th respondents were duty-bound to balance the story by interviewing him before publishing the allegedly defamatory statements. He claimed that owing to the respondents’ failure to observe journalistic etiquette, they published defamatory information in which the petitioner was implicated in the criminal accusations. Although the petitioner conceded that the alleged defamatory words were uttered by the 1st respondent during the party meetings (Halmashauri Kuu ya NCCR- 18 Mageuzi), he insisted that the CAG report (exhibit P11) never mentioned him anywhere for embezzlement of the party’s assets but rather recommended the investigative agencies to inquire into the suspected loss of the party’s properties. Further, the petitioner clarified that he did not implead Mwanahalisi TV because it apologized before the institution of the matter. Regarding the amount of damages claimed, the petitioner conceded that since his dismissal from the party’s leadership and after dissemination of the alleged defamatory statements there is no post or

position that he has applied for and failed nor has he incurred financial loss because of the alleged defamation. Notwithstanding, Mr. Mbatia maintained that the said defamation resulted in his reputational damage as he is no longer trusted in society. In short, that was the petitioner’s account. On the other hand, all six respondents strongly contested the petitioner’s claims. The 1st respondent did not dispute uttering the alleged defamatory statement. His main defence was that the published information was nothing but the truth. He expounded that the allegations of embezzlement against the petitioner were unveiled by the Controller and Auditor General through 19 his report (exhibit P11). On their part, DW3, DW4, DW5, DW6, DW7, and DW8 for the 2nd to 6th respondents admitted publishing the alleged defamatory statements against the petitioner. Nevertheless, like the 1st respondent, they stressed that they did it professionally, without malice, and that the information was true. Further, all the respondents’ witnesses were insistent that the petitioner’s claims of TZS 11,000,000,000/= are unjustifiable. They thus prayed the court to dismiss the petitioner’s claims. When under cross-examination, DW1 was adamant that on 24/09/2022, he uttered true statements as they were deliberations of the party’s general assembly. He clarified that the general congress unanimously resolved

to dismiss the petitioner from the position of chairman and the membership of the party due to embezzlement. DW1 conceded that the journalists correctly reported what he said. Nonetheless, the 1st respondent and other defence witnesses admitted that the CAG report (exhibit P11) does not specifically mention the petitioner to have embezzled the party’s properties contrary to what the 1st respondent wanted the public to perceive. The 1st respondent 20 also admitted that he had no proof whatsoever to exhibit that the petitioner squandered the donors’ funds nor could he substantiate his utterances that the petitioner was lobbying to be appointed as a member of parliament through presidential parliamentary seats. Upon conclusion of the hearing, both parties filed their respective written submissions for and against the petition. I am quite grateful to both counsel for their informative submissions on the subject. Suffice it to say that I have accorded earnest attention to the rival submissions in arriving at the decision. However, I will not reproduce submissions verbatim to avoid making this judgment unnecessarily long and tedious. As hinted earlier on, before the commencement of the hearing, this Court, with the consensus of the parties, framed five issues for convenient determination of the matter: Thus, having gone through the pleadings, evidence, and rival submissions from the

parties, this Court is set to determine the framed issues as follows: Commencing with the first issue to wit; “whether the 1st respondent uttered the alleged information”. It is common cause that, in the amended petition, 21 the petitioner’s complaints are based on the publication of various information allegedly uttered by the 1st respondent and disseminated by the 2nd to 6th respondents. The petitioner’s evidence (the affidavit and exhibits) in particular exhibits P7, P8, P9, P10, P12, P13, P14, P15, P16, P17, and P18 reveals that indeed the 1st respondent uttered the allegedly defamatory information save for the information which was published by the Citizen newspaper (exhibits P14 and P15), Jamhuri (exhibit P16), and Global TV Online (exhibit P17) which was uttered by one Ambar Hajji Hassan who is not a party to this case. Further, the 1st respondent during his defence admitted to having uttered the alleged information only that he claimed that the said information was nothing but truth. To put it crudely, the petitioner managed to establish that the 1st respondent uttered the information under paragraphs (iv),(v),(vii),(ix),(xii), and (xiii) of the amended petition. In view thereof, the first issue is answered in the affirmative to the extent demonstrated above. The second issue is whether the uttered information was false. Section 37 of the Media Services Act provides

that the statement would not be 22 defamatory if it is a true account. On this, the evidence of both PW1 and DW1 evidence speaks against the 1st respondent. The alleged information is on three fronts namely, that the petitioner illegally sold the party’s assets, that the petitioner was lobbying for the late President Magufuli to appoint him a Member of Parliament through presidential parliamentary seats, and that he received Tanzania shillings five hundred million (TZS 500,000,000/=). The petitioner established this through his affidavit and exhibit P7. In addition, the 1st respondent admitted during cross-examination that the Auditor and Controller General’s report did not point out the petitioner as the person who embezzled the properties of the party. For purposes of clarity, I let the relevant part of DW1’s evidence during cross- examination by Mr. Daimu Khalfan speak for itself: ‘Exhibit P11 is the report I was referring to my press. The report (exhibit P11) does not mention Mbatia anywhere as embblezler of the party’s assets. Yes, I saw this report (exhibit P11) before my press. I mentioned Mbatia because he was the Chairman of NCCR-Mageuzi. The report (exhibit P11) does not mention Chairman of the party. There are 23 many leaders in NCCR-Mageuzi. Vice Chairman of NCCR- Mageuzi is a leader. Indeed, Secretary General is a leader. Regional Chairpersons and Secretaries are

leaders as well. My thinking pointed to James Mbatia as one responsible for the embezzlement. I have no evidence to the effect that Mbatia was collecting funds from the members of the party and the donors. I do not remember if I had that evidence during press conference.’ Indeed, as indicated above, the 1st respondent could not substantiate or prove the truth of his utterances. Further, the 1st respondent did not bring forth any evidence to back up his allegations that the petitioner was lobbying for presidential-parliamentary seats and that he sold the party’s properties. In the absence of evidence affirming the truth of the alleged defamatory statements, it goes without saying that 1st respondent’s utterances against the petitioner were false. The 2nd issue, without further ado, is answered in the affirmative. I now turn to determine the 3rd issue on whether the 2nd to the 6th respondents published the alleged information maliciously. In tackling this 24 3rd issue, I deem it apposite to preface my deliberation with the provisions of section 36 of the Media Services Act. It provides: ‘36. -(1) A person shall be deemed to make publication of a libel if that person causes the print, writing, painting, effigy or other means by which the defamatory matter is conveyed, to be dealt with, either by exhibition, reading, recitation, description, delivery or otherwise, in a way that the

defamatory meaning thereof becomes known or is likely to be known to either the person defamed or any other person. (2) It shall not be necessary for defamation that the defamatory meaning is directly or completely expressed. (3) For the purpose of subsection (2), it shall be sufficient that such meaning and its application to the person alleged to be defamed may be collected either from the alleged libel itself or from any extrinsic circumstances or partly from the one and partly from the other means.’ From the above excerpt, it is common cause that any person who causes or conveys defamatory information to another person is deemed to be a publisher of that information and for that case is tortiously liable. In addition, the Court of Appeal in the case of the Public Service Social Security Fund ( Successor of the Parastatal Pensions Fund) vs Siriel Mchembe, Civil Appeal No. 126 of 2018, CAT at Dar es Salaam on page 24 25 of the judgment, when expounding on the scope of liabilities and the categories of publishers, had this say: ‘It is equally important to stress that when the defamatory statement is published, the liability is not limited to the writer but it also extends to publishers, and in terms of online publication, to internet service providers including blogs, websites, web-hosting and the like.’ The above holding nails it down that both print and online media are

legally liable in law for publishing defamatory information. They therefore have the duty to ensure that the published information is true or else, they are bound to comply with their professional rules to wit, to balance the story by incorporating the version of the other side. I have painstakingly scanned the evidence adduced, and in particular, the exhibits tendered by the petitioner. It is apparent that the utterances in the Citizen newspaper (exhibits P14 and P15), Jamhuri (exhibit P16), and Global TV Online (exhibit P17) were made by one Ambar Hajji Hassan who is not a party to this case. This Ambari Hajji is the one who ought to prove the truth 26 of the alleged statements. Since the petitioner did not implead Ambari Hajji Hassan, it naturally follows that the 3rd respondent who was impleaded by virtue of being the Editor of the Citizen newspaper, and 4th respondent are not liable. The petitioner has failed to prove the allegations against them. Regarding the 2nd, 5th, and 6th respondents, it is undisputed that they published the alleged information through Mwananchi Digital, Global TV Online, and Wasafi Media as demonstrated via exhibits P7, P10, P13, and P18. The evidence has it that the trio above reported exactly what was uttered by the 1st respondent. This was also confirmed by the 1st respondent himself. To wind up this issue, it is my considered findings that only

the 2nd, 5th, and 6th respondents have been proven to have published the information in dispute. The follow-up and relevant question is whether the respondent afforded an opportunity to the petitioner to respond to the allegations uttered by the 1st respondent against him. It is a common principle in journalistic work that reporters should balance the story, that is to say, journalists should present 27 all sides of an issue that they are reporting on without any supporting bias. Asaad Abbas in his article ‘Ethical Challenges in Journalism: Balancing Objectivity and Sensitivity in Reporting’ on page 2 available at https://www.researchgate.net/publication/372518352 says: ‘One of the primary ethical challenges in journalism lies in the tension between objectivity and sensitivity. While objectivity aims to present news and information without bias, sensitivity entails a consideration of the potential harm that reporting may cause to individuals or communities. Striking the right balance between these principles is crucial in providing comprehensive and responsible reporting.’ I carefully listened to the witnesses and keenly scanned their evidence but none of them sufficiently proved that the petitioner was heard regarding the 1st respondent’s utterances before they were published nor does the published information reflect the petitioner’s story. The 5th respondent, on its part,

through Hilal Daud Mwashimi (DW6) testified that the alleged defamatory statements were published through live 28 broadcasting and hence it was impossible to hear the story of the adversary side. I painstakingly pondered about the applicability of the rule of balancing the story in relation to the live broadcast. In fine, I was inclined to find purchase in the 5th respondent’s defence that it is impracticable to comply with the rule in a live broadcast. For that reason, I find the 5th respondent not answerable because the element of malice is lacking. Based on the foregoing deliberations, this Court holds that only the 2nd, and 6th respondents are liable for publishing the defamatory information. They proceeded to publish the alleged information without taking into account the petitioner’s opinion. They acted in total violation of the impartiality principle (To balance the story). This explains that they maliciously published the defamatory statements. It is noteworthy that in the present era where there is free access to and quick dissemination of information due to an influx of media activities, the media must strictly comply with the professional rules otherwise, many people would have their reputations tarnished unjustifiably and this may turn our society in tension. To sum up, I answer the 3rd issue affirmatively in 29 respect of the 2nd and 6th respondents. However,

before delving into the last issue it is imperative to discuss whether the information in dispute is defamatory. On this, the provisions of the Media Services Act No. 12 of 2016 hereinafter referred to as ‘the Act’ are relevant. Section 35 (1) of the Act provides;- ‘35. -(1) Any matter which, if published, is likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule, or is likely to damage any person in his profession or trade by an injury to his reputation, is a defamatory matter.’ The above definition is undoubtedly in consonance with the common law definition of a defamatory statement. Edwin Peel and James Goudkamp in Winfield and Jolowicz on Tort, 19th Edition, Sweet & Maxwell, London, 2014, in Para. 13-002 state: "It has been said that a statement is defamatory if it tends to bring a person into hatred, contempt or ridicule'. Another frequently quoted test is that the words must tend to lower the claimant in the estimation of right-thinking members of society generally. But to these definitions, it is necessary to at least add that words may be defamatory if they tend to cause the claimant to be shunned or avoided..." 30 The Court of Appeal of Tanzania in the case of Hamza Byarushengo vs Fulgencia Manya & 4 Others, Civil Appeal No. 246 of 2018 [2022] TZCA 207 quoted with approval a similar definition provided by the Halsbury's Laws of

England Vol. 28 4th Edition at page 7 thus: ‘A statement which tends to lower a person in the estimation of right-thinking members of society generally or to cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule or convey an imputation on him disparaging or injurious to him in his office, profession, calling, trade or business.’ Having critically appraised the information in dispute, I am at one with the petitioner that the alleged published information constitutes defamation because, in the estimation of the right-thinking persons, it lowered the reputation of the petitioner by implicating him in the embezzlement of the party’s assets and portraying him as a corrupt and puppet person. According to exhibit P7 and paragraph vii of the amended petition, the 1st respondent accused the petitioner of squandering the party’s properties. A part of the contents of exhibit P7 goes as follows; 31 ‘kwamba kwenye ripoti ya ukaguzi maalumu Mdhibiti na Mkaguzi wa Hesabu za Serikali aligundua kwamba kuna mali za chama ziliuzwa kwa usimamizi wa Mwenyekiti au kwa maneno mengine ziliporwa hazijulikani zilipo….. kwa mfano hapa Bagamoyo NCCR-Mageuzi ilikuwa na shamba la hekari 56 hapa Kerege MBATIA na wenzake wameliuza sasa unampigia makofi unasema kwamba anaonewa wakati hichi ni kitu Dhahiri…..Una hiyo ripoti ya Mdhibiti na mkaguzi mkuu wa Serikali …..mfano Bunju

hapo tulikuwa na nyumba mbili NCCR-Mageuzi wameuza sasa unasema tusizungumze kwamba kazi ya wanachama ni hei hei hei mtaani halafu kikundi kidogo cha watu eeh kifanye kinavyotaka katika shughuli za chama hapanaa….’ Further, the 1st respondent uttered the following words as contended under paragraph xiii of the amended petition and supported by exhibit P7: ‘..ni kwamba James Mbatia kwa kutumia mamlaka yake aliuza shamba letu la chama ekari 56 pale kiromo na fedha akaweka mfukoni akidai ni mali yake Hili shamba sio mali yake ni mali ya chama ni mali ya wanachama walichanga 32 shilingi elfu ishirini na tano ishirini na tano hoja hii nasisitiza hoja hii iko katika ukaguzi maalumu uliofanywa na CAG wa nchi hii mthibiti na mkaguzi wa hesabu za serikali za nchi hii alikagua na kugundua kwamba uko ubadhirifu uliofanywa na James Mbatia kuuza shamba letu alitumwa na msajiii alitumwa na serikaii alitumwa na CCM alitumwa na mama Samia ...tunamtuhumu James Mbatia kwamba amekuwa akichangisha wanachama na wafadhili wa NCCR Mageuzi mamilioni ya pesa mamilioni hayaingii kwenye chama hayaingii kwenye chama kwa sababu unapochangisha lazima fedha ziingie kwenya akaunti ya chama ili ziweze kuwa ouditedi lakini oudita akija CAG akija anaona matumizi kewenye vitabu anaona matumizi lakini hajui fedha zimetoka wapi yeye Mbatia anasema mimi nimepewa na rafiki zangu Rafiki zako gani ingiza basi kwenye

akaunti za chama kwa hiyo haijulikani kama umeleta milioni mia tano ni zenyewe au zilikuwa bilioni moja....’ Moreover, it was contended under paragraph (iv) of the amended petition and proved through exhibit P7 that the 1st respondent accused the petitioner 33 of lobbying for the appointment of Presidential-Parliamentary seats. The said publication reads: "...lakini tumegundua sambamba na malalamiko yake mwenyekiti wetu alikuwa anafanya lobini alikuwa anakwenda kichinichini kuomba ateuliwe kuwa mbunge katika nafasi kumi za rais kinyume na maagizo ya chama na kinyume na uamuzi wote wa chama hii si sawa pamoja tunasema uchaguzi haukuwa huru pamoja tunasema kwamba Hili bunge ni bunge la mchongo lakini yeye anakwenda kichinichini kwenda kufanya mipango ateuliwe ili aingie kwenye hilo bunge la mchongo na na mimi napata mashaka kwamba inawezekana sana kwamba kwamba hata kauli aliyoitoa kwa rais ni baada ya rais kumkatalia baada ya rais kukataa kumteua katika nafasi hiyo...." Assessing the above utterances, it is common cause that they lowered the petitioner’s reputation in the eyes of the right-thinking members of the society. Further, the petitioner under paragraph (vi) of the amended petition contended that the 1st respondent accused him of receiving Tanzania 34 shillings five hundred million (TZS 500,000,000/=) from the late President John Pombe Magufuli. The said paragraph is to

the following effect: ‘(vi) THAT, further in May 2022, the 1st Respondent knowingly and without any justification or colour of right with intent to further injure the Petitioner's reputation and goodwill to the members of the public further disseminated false and defamatory information to the public that, the Petitioner received money from the late President JOHN JOSEPH POMBE MAGUFULI to the tune of Tshs. 500,000,000/= knowing that this information is false, defamatory and will lower the reputation of the Petitioner herein.’ As portrayed in the above excerpt, the petitioner could not reproduce the alleged defamatory statements and instead paraphrased them. This, in a defamation case, is wrong because the petitioner was duty-bound to reproduce the defamatory statements verbatim. The ailment denied to respondents to know the actual defamatory words complained of. For that reason, I find the allegations under paragraph (vi) unproven and therefore 35 dismiss them. See the case of Hamza Byarushengo vs Fulgencia Manya & 4 Others (supra). The last issue for consideration is the reliefs to which the parties are entitled. The petitioner prays for several reliefs including an order compelling the respondents to make a public apology for the false and defamatory, payment of TZS 10,000,000,000 (say Tanzania Shillings Ten Billion) as compensation for dissemination of the defamatory

statements, payment of TZS 1,000,000,000/= (Say Tanzania Shillings One Billion) as general damages for mental distress and psychological torture suffered by the petitioner herein, among others. The petitioner’s evidence, during cross-examination by Mr. Axwesso Stephen for the 2nd and 3rd respondents in respect of the basis for his claims, was to the following effect;- ‘Indeed, my reputation has been damaged by the respondents. The evidence I have brought shows that I have been accused criminally. I have been party chairman and member of constituency that is why I am claiming ten 36 billion. This is exhibited through exhibits P1 and P2. There is no any post or position that I have applied for after defamation.’ It is a trite law that special damages must be specifically pleaded and strictly proved. See the cases of Zuberi Augustino v. Anicet Mugabe, [1992] TLR 137 and Stanbic Bank Tanzania Limited vs Abercrombie & Kent (T) Limited, Civil Appeal 21 of 2001, CAT at Dar es Salaam. According to the record, apart from alleging being a party chairman, the petitioner could not bring the evidence to justify the claimed amount. Since the petitioner failed to sufficiently substantiate the claim of Tanzania Shillings Ten Billion as special damages, this Court is settled that the same cannot be awarded. Regarding the prayer for general damages to the tune of Tanzania Shillings One Billion,

it is a settled law that general damages are damages that are presumed to have resulted from the defendant’s tort or breach of contract. They are normally damages at large and can be nominal or substantial depending on the circumstances of each case. Bryan A. Garner, Black’s Law Dictionary, 8th Ed, (2004) at page 1174, defines the term general 37 damages thus: ‘Damages that the law presumes follow from the type of wrong complained of; ... compensatory damages for harm that so frequently results from the tort for which a party has sued that the harm is reasonably expected and need not be alleged or proved. General damages do not need to be specifically claimed.’ (Emphasis added) Going by the above definition, it is settled that general damages must be pleaded but not quantified. The reason behind this principle of the law is that the general damages need not be strictly proved but rather awarded at the Court’s discretion after considering the circumstances under which the plaintiff was subjected and the type or nature of the complained of tort or action. This position was restated by the Court of Appeal in the case of Peter Joseph Kibilika vs. Patric Aloyce Mlingi, Civil Appeal No. 39 of 2009, CAT at Tabora, and Anthony Ngoo & Another Vs. Kitinda Maro, Civil Appeal No. 25 of 2014, CAT at Arusha. As the petitioner could not strictly prove the pecuniary loss suffered from

the defamatory statements, this Court is settled that the most effective and 38 viable remedy for the reputational damage is an apology to clear the petitioner from the accusations. In that regard, it is unfeigned findings of this Court that the petitioner is entitled to the reliefs of apology and general damages. Consequently, I find the award of Tanzania Shillings Ten Million (10,000,000/=) only as general damages sufficient and appropriate in the circumstances of the case. In the upshot, I find the petition meritorious and therefore enter the judgment and decree against the 1st, 2nd, and 6th respondents as indicated above. Consequently, I order the following; 1. The petition against the 3rd, 4th, and 5th respondents is devoid of merits and the same is hereby dismissed in its entirety.

2. The petition against the 1st, 2nd, and 6th respondents partly succeeds.

3. The 1st respondent is hereby ordered to make a public apology to the petitioner for the published defamatory statements that the petitioner sold the party’s properties and that he was lobbying to be appointed by the President as a member of parliament. The apology should be published through the media of the 2nd (Mwananchi Digital) and 6th 39 respondents.

4. The 1st, 2nd, and 6th respondents are hereby jointly and severally ordered to pay the petitioner Tanzania Shillings Ten Million (TZS10,000,000/=) only as general damages for the published defamatory statements.

5. The 1st, 2nd, and 6th respondents are hereby jointly and severally ordered to pay interest of the decretal sum under (4) above at the court’s rate of 7% from the date of this judgment to the date of final satisfaction.

6. The 1st, 2nd, and 6th respondents are hereby ordered to pay the costs of the suit to the petitioner. It is so ordered. The right of appeal is explained. Dated at Dar es Salaam this 28th day of February, 2025. A. A. MBAGWA

JUDGE 28/02/2025 40 COURT: Judgment delivered today in the presence of petitioner in person, advocate Daimu Halifani assisted by advocate Hardson Mchau for the petitioner, advocate Mulamuzi Byabusha for the 1st respondent, advocate Noel Mushi for 2nd and 3rd respondents, advocate Melania Mashauri for the 5th respondent, and in the absence of 4th and 6th respondents. A. A. MBAGWA

JUDGE 28/02/2025 41