20160218 TZHC Dar es Salaam

1 IN THE HIGH COURT OF TANZANIA AT DAR.ES SALAAM CIVIL CASE NO. 39 OF 2010 DEODATUS RWEKAZA .................................. PLAINTIFF V. TANZANIA ELECTRIC SUPPLY COMPANY LIMITED~-~~ i•••• ~ •·•• ~ ••••••••••• ·•••••••••• •DEFENDANT .--~ . -~- . . JUDGMENT Date of last Ord.er · j 7/12/2015 ·. Date of Judgment · 18/ 2/ 2016 Shangwa, J. The plaintiff Deodatus Rwekaza 1s claiming against the defendant. TANESCO for payment of Tshs. 300,000,000 / = as general damages for defamatory writings against his reputation. In his plaint, the plaintiff claims that in~ September, 2009 2 during Election campaigns, · he was one .of the contestants for· chairmanship of Mwanalugali Street in Kibaha .township through the. ticket of Chama cha Mapinduzi (CCM). That during the said election campaigns, the defendant wrote a letter to CCM authorities in Kibaha District stating that he was once an employee of the defendant and that his e.mployment was: terminated due to dishonesty to the defendant. That the information contained in the . said letter is false calculated to injure his character and integrity and that the contents of the said letter were ·spread in the entire township of Kibaha. That· various copies of the said letter were reproduced and posted in various· public places. of Mwanalugali Street and Kibaha town during the campaign period 3 with negative cdm:tne·nts. such· as "Mwizi ni wangu . :na wako pia". In English a -thief is a "thief to me and to you too".- That · during that period, he - was treasurer in the Roman Catholic church and that as _- a result of these negative comments people regarded - h~m to be un.fit f9r-_the jo_b. At the commencement of hearin:g this suit, two - - · .- issues were framed for determination· namely:- · I i •. , • I !· 1. Whether the defendant's letters i to CCM offices were defamatory~ 2. What reliefs are the - parties entitled to: 4 I wish to comment here that this suit had been I ' assigned to Bongole, · J. He partly heard it by . ---- -recording-the testimony of.P.W. L.~--Eor reasons nbt- . . disclosed on the record, when he was appointed ,is_. acting judge in charge, he re-assigned it to me. I did not have time to ask him as to why he decided to re_""'. assign it to me. I decideci to hear P.W.1 's testimony afresh and by the Grace of God,· I proceeded to deal with the whole case by· hearing witnesses from botih sides- and writing this judgment.· The plaintiffs case was led by Mr. Kabakama, Advocate and the defen·ce case was led by Mr. Kyarukuka, Advocate. In his testimony the plaintiff told this court that in 2009, he contested for the post of street chairman 5 through CCM · - party - ·ticket· and that during campaigns; .a day before· election, . the defendant wrote -a letter to his CCM Branch Office .a.t~- Mwanalugali Street alleging that he is a thief ap.d :a - - person who is · untrustworthy to be elected for_ the post he was contesting _at Mwanalugali.- That abol:lt 500 copies of the said letter were posted all over. . the ., . street buildings, TANESCO'S electricity pdsts and on- tree trunks. He tendered· the -said letter ·in;~evidenae. · and it was received and marked as exhibit P.1.That· this letter tortured him phsycologically as it -lowered - his reputation before his voters, parish .priest and church members who read it and that as a result, he· got lesser votes than he would have earned and that when time came for election of a Parish Accountant, 6 he lost election as his voters looked.at him as a thief due · to defamatory statements in· exhibit Pl. He pray:ed_ for _general damages of not._Iess than Tshs. · 300,000,000/=. In his cross- examination,. he stated that in 2007, electricity was unlawfully connected to his two houses · at Kibaha after being transferred· from TANESCO'S office at Kibaha to TANESCO'S office;; at ·-Chalinze and. that the one -who did so is his· · wife and that when the matter·.was~referred- to CMA,· he was cleared after finding that the one who stole the defendant's electricity is his wife. That exhibit Pl .:.TJ was not affixed on trees by the defendant. That the ones who did so are people from CCM Branch office. That the · letter was a confidential one written by · defendant to CCM office. 7 · P.W.2. Soph.ta Shabani Mlao told the_~9urt that._ she works as secretary in the CCM ---- -~~··-----··- . . District Office at ·----- . Kibaha. That during election cc1.mpaigns for local government· in . 2009,. the District Party Office at Kibaha received a letter. from TANESCO dated 19 th November, 2009 informing the CCM office that the plaintiff is a thief and untrustworthy . ., -- . . .· , - .. P.W.3 Abdalla Abush~ikh Mdimu told this Court that he is a CCM District . . Party Secretary at I-Kibaha. · That the plaintiff won the post he was ·conte_sting through CCM party ticket and that before then. he was working with TANESCO. That during the 2009 . Local Government elections, he contested for street 8 " . chairperson and that · during his campaigns, TANESCO (defendant) wrote.a letter addressed to the CCM Party Branch-Secretary of Mwanalugali Branc}?-_" in which it was alleged that the plaintiff is not trust--_ worthy. _That after receiving. the .said~ letter, his office - - wrote a reply and. requested· TANESCO to explain and that TANESCO replied that it has nothing to add~ He tendered . the _said letter in evidence as exhibit P2 and said that this letter. could have made ·- their office a_nd voters _to refrain from electing him to the post of Street Chairman. As already mentioned, the defence was led by Mr. Kyarukuka, Advocate. He called one witness to testify on behalf of the defendant namely Joseline 9 Em1n.-anuel Anyandwile (D.W.1). Thi~· defence witness told this ·court that ,he ·_is Administrative fy'.lanager Labour- Relations. That she knows the plaintiff who__ was an employee of the defendant at Chalinze and that he was terminated from employment in 200:? because of being untrustworthy at _wor~. That he unlawfully connected electricity from his p.ouse by using underground wiring system to his bar, rented houses· and bandas. · That when . he was ~sked to . explain, he admitted to· have done so and that he was fined Tshs. 5 Million plus which he paid. That_ exhibit Pl is a confidential letter by the defendant and that it explains the reasons as to why TANESCO terminated him from employment.The re~son being that he was untrustworthy at his place of ·work. That 10 exhibit P2 is a letter from TANESCO to CCM District Secretary at Kibaha and that the said letter insisted to CCM Party District Secretary that the con.tents of exhibit P 1 are true. During cross-examination · D. W. 1 told this court that the one.who started to write a letter demanding . to know about the Plaintiffs conduct is CCM who .. wrote to the .defendant. That a confidential letter is not supposed to be circulated to any pers.on who is not concerned and that the defendant does not know , r1i who circulated the defendant's letter to the Public. On issue number one, the court is asked to determine as to whether or not the defendant's II':•. • t 11 letters to CCM. Offices ·were defamatory. There are. · two letters which ·were· written by~ the defendant to. CCM Offices .. The .first letter ·is exhibit P 1 dated 22 nd September, 2009 with Ref RM/Coast/PF/D395 · which is a letter replying to CCM letter with Ref. No. . CC/ 15 / 24 / concerning the plaintiff. It IS a confidential letter. It was signed by the defen~ant's Branch Manager · Coast Region called· Lucas M. Busurige informing · ·CCM that the p}aintiff . ):3 · employee of the defendant at Chalinze and that he was terminated · from · employment · for · being untrustworthy to his employer and for his failure to. comply with the defendant's rules and legal procedures. The second letter is exhibit P2. It is also a confidential letter. It is dated 19 th November, 2009 12 with ref. RM/Coast/F/D 395. It was signed by the same person as exhibit Pl. It was addressed to the CCM Party District Secretary -at-Kibaha insisting that what was written in exhibit . P 1 · is the defendant's stand in accordance with its office· .· record. I wish to -state at once that in my opinion, I do not find anything ·-defamatory irt ... the. defendant's letters i.e exhibit Pl & P2 to CCM who wanted to know as to whether or not the plaintiff who was contesting for the post of street chairman through CCM ticket was a man of integrity, trustworthy and honest to be voted into the office of Street Chairman of Mwanalugali through CCM ticket. ' j 13 There 1s no where it. is· expressly mentioned in both letters that the plaintiff was or is a thief. In my·. view, the handwritten ·words in· big letters below exhibit Pl reading "N.B.TABIA . HAINA DAWA:_ MWIZI NI MWIZI WANGU NA WAKO PIA" were not. written there by the defendant. They were ghosted by an unknown person. As I have · already mentioned, there is nothing defamatory against the Plaintiff in the defendant's ~ . letter to CCM District Secretary at Kibaha. Thus,. I answer issue one in the negative. Having answered issue one in the negative, issue two has no legs to ,..... l \ J :'•··' 14 ' stand. For these reasons, I dismiss this suit with costs. - -_- ··A:Sliarigwa JUDGE· · 18/2/2016· Delivered in the presence of Mr. Kyamani for defendant and in the presence of the plaintiff this 18 th day-of February; 2016. A.Shangwa JUDGE 18/2/2016