19980807 TZHC Dar es Salaam

IN THE HIGH COUR'::: OF TAhZA1-.IA DAR ES SALi'.J:,,_°i", DISTRICT REGISTRY AT DAR ES SALAAi•1 CIVIL CASE 1·,o .49 OF 1994 .DR GABRIEL L. KObBA •• ., •••• PLAll'lTIFF' VERSUS 1. J'HE EDITOR OF 11 1',0T0 1•10TO" ••••• ~ . 2 E ,., F'UBT rs···!i.e., • • ;:::, .. ':' .""",:RS .,_J ~, D"-,Ti'El' • ~ o o • .. • • • • ~ • K .11,J.: D . TS "' 1-l 1 ... 3. FRil~TFAK ( T) LI1'1ITED •• 2 ••••• f J U D G 1•1 E .1.~ T BUBESHI, J: The plaiAtiff Dr. Gabriel Kolllba was employed by the i"'iinistry of Agriculture fro.llt 2/4/1970. By the time he retited-·in February;· 1995 he held the post of ·· Assistant Comrr.issicl"er iP Livestock Development. He was iri charge of impor~il"g livestock drugs. He has f i1ed this suit £::x.."' libel against the •1.ree ... defel"da nt' s claimi r,g from the:n jointly and severally . · a sum of Shs.,200~000,000/=; · The defenc..a11ts through their courisel-Raphel Cha...,"la- •.. prepared their writteri statemerit of defel"ICe ireludi rig there-in several annextures. However there i·s no evideT"ce that the writteri staterueT"t of deferice was duly filed in court although the documerits bear a stamp of _the Registrar High C,:;urt: dated 21:/11/199~." Be it as-·it rr:ay this court had ordered, on 15;'9/94, the Plaintiff to proceed exparte, by oral evidepce. l'--1r. 8. Tenga of Law Associates appeared for the ro_aiptiff iri these proceedi~gs • .The Plair.tiff \\'k'I,:::) was the sole witres-s testified that he llea.:l~-d the LiYestock . sector arid was . irichan:e of ~ illLr,?r\irig livest:Jc:k drugs. He was· i ri charge of all the live.stock in the cou.ntry al"ld· had Y.!J.p._e-;v- him some 5 officers..1 8TIG of wh~:r,1 was based Temeke and he is. at the or'le that wou:J_d irriport drugs af.ter··getting a go ahe~d from the Plaintiff. He. ci.:;mplairied that t11otomoto ..... /2 2 magazine h,3_d published ~11 ar·ticles OY' importation of drugs articles which hs claim were defarrator-y-· of"·,hi,s character and that the r-ubtlcations were false. He te-ndered i-r c;_:.urt Exhibit P 1 which is ari article from Jviotomoto dated 5 - 13 l\:ovember, 199:3. The court adrni tted the Ph~)toco;~,y after being infc.,I'JI!~d that· -ihe ori5inal d.c.·cun,e~ft'ir, the 9'.lstody ,).f his coun~el had bee-r gutted down i.-n the fire that destroyed the NASACO buil,:lir.ig wherein the oflices ,)f Law 11.ssocia-tes had beer, located. Ext:-.ibi t 1-- · l carried publication to the effect that, the Plai-rtif.f in o:;llaboration with other persoPs flouted the procedure laid dowYl for importirg li veste-ck ::~rugs thus occasi.Jrii r1g a loss of TShs. 945-- million tc the Drugs Revclvirig Fund. That the Plaintiff wa::i demanc.lir.g 10% cormiiissic:r, out of the deals. t.It was furthcr·alleged that the plair>tiff collaborated with H/S Interche.llL Fharma "Ltd to puro:1ase drugs worth Sh!'-.144~ 343,4007 = which later ex::>.ired,. · That the Plaintiff co].labc,ra.teF.l wi_th Dr,, Be Yi lVioshi, then Fri ncipal Secretar:r i y, sarr!e 1lh:ristry 1 to secure a loaP from CRDB in favour of 1v1/s Interchem; the latter who 1 subseque r.tly supplied large quantities of low quality drugs to the tun~ of Shs. 748,5 million. The Plaintiff went ori to state that Exhibit I· ;~· was published. i-r h'iotoic.oto issue cf r-:over,1ber 19 - 25th, 1993. That the article earried~-allegation.s that the plaintiff has used. the illgotten rrioy,ey to build a-house worth millior.s of shilli-ngs at iv1akongo,. 'I'he plairitiff testifiec: further that i-n the 3rd - 9th Decerr:ber, 199~~- issue of .1·10-te,n:.oto adT:ii ttep. as Exhibit P 3. the de·fe,-,da ,,-,ts pubiish2d an article to thG effect that the plai:rtiff grar>ted, to M/s bay a-rid Baker arid Hoescht·-(E A) Ltd,·· a contrae-t fc:-c t:he sur-ply arid d.istributio-n ~f v;eteririarY drugs, and in the pr.1cess,. occasioni:rg lass ~;f i.i.,,illions of shillings Cue to irripro})er docur,ientatiori receipts. The Plai'Y1tiff we-rt on to state iri his eviderice that the defericlants published arv:.1ther--article•·iri l'!~ctor.uoto issue of 10 - 16th Dec2n:ber, 1993 - teridered iri court a:-s •... /3 .I . . J 3 ____________ Exhibit P Li- , -·to the effect that the plai.ritiff iri collabcratL; r with other pe;rsor>s, imported· i:rti') the couritry hug2 quantj_ties· of a particular drug,. Y\-:it ccruh,orily used. He aci.ded· tl1e.t i r> the l\oton..c.to is.sue of 24 .... 30th Decer.1ber, 93, the eleferi~a;:-:·cci published ari article accusiJ"g the plai Y1tiff of delibsrat8 inactio~. . where ari accountaYlt of with the Linistry va; is.qed 'followiYlg a loss of 1 h 14 ill.l.. l___ S··s.. 7 lCDe . .,,, · - . ..; O f ar t lC _r.Le cor.ip12cl_fle•.c . l 0 was -cenJ.ere ' ' d i,.., c·ourt as E..xhibi t P 5. 'rhe Plair.tiff test.if:ied further that the dcfe-ndarits i:ublished yet ar0th2r articl,~ in hoto~oto issu2 of 31st Dece,:1b0r, 1993 --7thJa-nuary, 1994 where it was alleged that the plairtiff together with Dr. Ben ~oshi his pri-ncipla.l secret-ary delib-2ratelY faiied-·to sub.tu.it for audit··and E<iI.:'Utiny, f.:.)r fire-years coritinuously, the accouT1ts of-·the Drug .Revolvi:r.g Furrl. -·That this was· dore so-.-as t.9 cunceal the I£isuse and misma-ragernent of the Fur.cl. This article· was tende-Tsd as ~xi:'iibi"t F 6. The article vr2rt -::)Yl to say of the Plair,tiff that- togethGr wi.th Dr. Be-n Loshi authorised huge quaT'ti ties· of th2 drugs. hILS:A!·: a.ncl i•1 ILVERN, which -drugF. are l'.lOt coi..rnoriJ.y used. The-·Plr::.:.i-ntiff testif-i.e(t that his lawyers wrot~ the . asKing fer defer,dapts on 23/12/93[an apologise-·but the latter did. -not only o:ffeT ar aPclogy but coriti-nues. to publish the oi'fe-nsi ve articles. 'l'he·-letter addressed to E-;,· S. Fublishers, the 2nd defer1darit is referred to i-r the pl°airit 0s arriexture GK 7. explained orctel~~ Plaintiff L t~ th,:? court ·the procedure u_s.efi~/w!~.-_cre1::.:-- Lr1rug,s ...~-gBri:c:f1y stated 1 the Plaintiff testified that after receivi:r.g-·the total requireH,erits froh, the Regional offices;· thi2 C2ntral--'Terider Board would call :f~r bids~ The wi ny,er ·,,vr)1J_J.:.l the ri be ref erred to the lVlinisty . of Heal th f·or. necessary acticT'. That the drugs w01..;.ld be bought according to the furxis av.:3.ilahle • .. . . . /4 . ..J '. .. ..l • 4 The :Plaint.:.:ff adn,i tted to the possibility- of accuiirulation of 2xpired drugs. But he explai:red that that was due t•.) ~::he .fact that the proe·edure adopted was ,. .f ,.:r .J..h 1 orig. .f~S L,_ e Fu ' th e p·1 ai. r1~1.L --r,c, ' s t liiea . . .t:'f 1:e · ~ · ' t ;u·t- 1 • i t was last audited in 1992, Ple.:i ntiff te nd:ered in court a eo-nfider-tial report er ·t:he i -nvestigatiori d.-:n1e by the fv1i:nistry or, the allegatio,ns published--ir the Hotollloto paper. The court a~i~ii tb;?d ti,e do•un12'.t as Exhibit F 7. It is il:J:pp'."Jrturie to cor1,E1ent o~ Exhibit· 7. First of aJ.l the docuri,e-rt ·was--not teroered by the author or tho adclresseC:;-. The piaiYltiff did. r:it have custody-· of the--report -not to n e:r,tion the fact that what 1 was ten:iered in court appears to have been taken out of the i\iini::otry 1 s 6cY1fideY1t.ial Registry without followirig the proper pr,:icsdure. This ·court is n-Jt sure-·of its-authe'riticity. I~ the prewis•2s I hole:;_ that for the reaso-ns _give,.., J. find E Exhibit P 7...,_ though adnli tted for lack of obj0ctio11, has rio prohativ-2 value. It woul.:. hav0 bee:r. simple· to have the- 0'rle who 1;repareci- the' report corue- and testify 011 the cor,te-nts but certai -nly YlJt the plai -ntiff hin,s?lf. The pL1i:ntiff de:ried causir,g firiancial loss· tG l:ri2 1vii 11is try. As mr the h-: 'vise - i 11 1··ako rigo the p],ai ritiff testified-·that · he has peen buildi .,,,g the house usi '!'"lg labour co :ntrctct:. Th3.t the value_ cf the hous·e is between 7-·- 8 1L.illi-:-J11-·a-rd that todate the house is n~t complete; only-·the gr:m:nd floor is ready for occupatioT! arid that the plai-ntiff re~ides ther? v.rith his __ family. The Plantiff die. "Y'Ot call a'l'IY wi t'l'less and yet he de-ried all the 3.llegaticl'"\s published in the l\1otomoto issues. -· -- All the· three acse3sors who- sat with m2 were of the ·u11ariin1ous opiniop that··the ·Plai-ntiff has riot established his claim- for defariiation. That he did l')ot suI,.li1ori to ·· his aid•·a'Y'y \•1it'l'l2ss, to _support his claim Garitley on 0 Libel arid Sle. :ncler 5th Edi tiori - by Richard O.Sulli veri states on page I: ;;The law recognises ifl-·e-.cery mar, a right to have the estilllatiori iri which he stands •.. /5 -1' in the opinion o~ others· unaffected by false staternerits to his diserecli t ,. Acy disrarage·mer,t of his good name is an irf-ririgemerit of this right arid therefore a v,TcY!gful act, ··:for which civil, and sometimes crimi~al proceediPgs will lie,.;' The learJ'lod author states further that: nThe law presumes i-r the Plail'1tiff 1 ·s favour that the ~wrds ar·e false,. ur1less the defenda-r.t proves the contrary.ii However as 2lready observed, the Plai ritiff vms the · sole witl"less4 l'-;o or..e was sumn,oned from the lViinistry to ci:yu.e and testify o-n his side:• The author of Exhibit P 7 · iri particular .would have .,greatly assisted the Plai·ritiff 1 -s case. The Pl.:J.iritiff hacl·to estA.b1ish·his claim ol"1 balarx;e of-Probability. Like the gentlerr,e11 assessors~ I fi r>d that the plairitiff has ;Cailed to prove his claim that the publications iri Motomoto vrerr? fulse heY1ce defamatory of his character. Claim dismissed. 1., n - 'I , J~ rf .\ . .i·.f'; Ii · /\j,.. \-~~=-) fl~.)- -:~:,'1,.1_.,(.,.. Delivered before~. A.G. BUBESHI JUDGE ar,d i ri preseYICe of 7/8/98 Assessors. '.