20141106 TZCA Dar es Salaam

IN THE I-IlGH COURT OF TANZANIA ' AT DAR ES .ALAAM CIVIL CASE No. 233 OF 1994 FELIX BWOGI t/a EXIMPO PROMOTIONS . AND SERVICES ........................................................... ;............ PLAINTIFF Versus; NATIONAL HOUSING CORPORATION...........................DEFENDANT JUDGEMENT 05/11 & 06ill/2014. Utamwa, J. The plaintiff in this suit sues 1n the name of FELIX BWOGI t/a EXIMPO PROMOTIONS AND SERVICES. At paragraph 1 of the amended piaint (filed in court on the 23 rd day of March, 2004) he alleges to be a busi!less firm operating from Dar es salaam for gain. He claims against the defendant, THE NATIONAL · HOUSING CORPERATION (a public Corporation established under the laws of Tanzania) for the following reliefs arising from alleged defamatory publications made by the defendant in a local n.ews paper going by the name ofUhuru; a) Loss of income, Tanzania shillings (Tshs.) Thirty Six Millions (36, 000, _ 000/=). . : . ·• b) Reimbursement of advanced sum of J'shs. Two Millions (2, 000, 000/=). c) Loss of reputation and standing Tshs. Five Hundred Million (500, 000, 000/=). d) Costs e) Interest at the bank rate of 30% from the date of its due payment. f) Any other relief this Honourable Court deems just and fit. The defendant denied the claim and accordingly filed a written statement of defence to that effect. Page 1 of 11 '•, • ' ' ; Following consultation with the parties, the court framed the following three :·. issues for determination; , 1. Whether or not the publication was true. . 11. Whether or not the publication was malicious and with intent to defame •·. the plaintiff. 111. Whether the plaintiff suffered damages following the publication. 1v. What are the reliefs entitled to the parties? The first p~osecution witness (PW. 1), Mr. Felix Rutazendelela Bwogi, being led by Mr. Nyakamo learned counsel, testified to the following effect; that he does . · business through two dully registered firms (to which he refe1Ted as companies). One is known as Olympia International Services registered in 1975 and the other as .. Eximpo Promotions and Services registered in 1974. He tendered in evidence the ·. ·respective Certificates of Registration of Change (and their respective extracts .·.: ,I,. • '\'I ., from register) as exhibits P. 1 and 2 respectively. PW. 1 further testified that, following· an agreement between· the parties, the ,· · defendant is the landlord of the plaintiff in a premises known as apartment No. 5, (Plot No. 582 block 9) situated at Samora/Mkwepu street, (the premises) where the plaintiff uses the premises for commercial purposes as tenant. The plaintiff runs various kinds of business at the premises including machines workshop, printing and stationeries. He tendered a copy of the letter from the then Registrar of . ., Buildings dated 27/6/1980 showing the notification of the lease (in Swahili, · '· Taarifa ya Kupangishwa Nyumba) _as exh. P. 4.to support his tenancy with the defendant. The witness added that the tenancy was also confirmed by the Court of • Appeal of Tanzania in another case (i.e. Felix Bwogi t/a Eximpo Promotions and Services v. The Registrar of Buildings, Civil Case No. 26 _of 1989, at Dar es salaam), the decision (copy) of whi~h was tendered in evidence as exhibit P. 3. He added that the letters "t/a" meant "trading as". He further testified that he paid the rent of Tshs. 300/= (three hundreds) per month as shown into the exhibit P. 4. He · · tendered a letter dated 13 th April, 1994 (together with a certificate of posting) as exhibit P. 5 to support the payment _of rent for some morttqs (Tshs. 29, 000/=). He .__ added that he did not receive receipts from the defendant against the payment. It was also the evidence by PW. 1 that the defendant falsely published into the newspaper. dated 29 th March, 1994 (copy admitted as exhibit P. 6) that the ., Page 2 of 11 ... . '\, 6 plaintiff was one of the chronic rent defaulter tenants as he had not paid rent at the tune of Tshs. 431, 000/= which was a rent~ for 119 years at the rate of 300/= per month, while he had paid the said Tshs. 29, 'boO/= which amounted to rent covering 'r 96 months. The PW. 1 also testified that following the publication in the newspaper, his friends shouted at him, while they were at Parm Beach Hotel and Tazara Club, telling him that he was a conman (Tapeli in swahili) and he was thus shocked. He also averred that the defendant had no need of publishing the notice because its officials knew the plaintiff and his office and could·use other means of . delivering the message to him. The witness added that, the publication lowered his respect in the eyes of his family, friends, neighbours and clients to date. It also affected his business as his clients could no longer do business with hir.n saying that the plaintiff was a chronic debtor (mdaiwa sugu in swahili). He· added that a company known as All African Continental Enterprises had contracted with the plaintiff to do business and , advanced Tshs. 2,000, 000/= to him for renovating the premises for the business, but it terminated its contract following the publications. The witness thus prayed for the court to grant all the reliefs prayed by the plaintiff. When cross examined by Mr. Sekule learned counsel for t~.e defendant, PW.l said, the exhibit P. 4 (letter of notification of the tenancy) does not show who the addressee is, and the court order (exhibit P. 3) directed that the plaintiff should be restored in the premises. However, the court order did not direct that the plaintiff should stay in the premises indefinitely and without paying rent. He added that the circumstances of this case are different from the circumstances of the Court of Appeal (former) case the decision _of which is in exhibit P. 3. He also said the publication in exhibit P. 6 mentions him in the name of Felix Bwogi, but in the lease agreement he was using the name of Eximpo Promotions and Services. The publication however, did not mention the name of Eximpo Promotions and Services. He further averred that, though the tenancy agreement was between the plaintiff and the Registrar of Buildings which is no more, the defendant took over from the said Regis_trar of Buildings and: the terms of the tenancy agreement remained intact. . PW. I also testified in cross-examination that he did not receive any notice of outstanding rent from the defendant befpre the publication, and he was not Page 3 of 11 ., I ', , , ' ' indebted to the defendant at that time.· His business used to give him more than·. Tshs. One Million per month, but he could not get that amount after the _: publication. He also said 'that, the defendant was not..part in the agreement between . · the plaintiff and the said ' All African Continental Enterprises. ! He was not informed · by the defendant on"the change of rent from the agreed Tshs. 300/= per month. The · institutions that ceased to do business with the plaintiff following the publication included the Defence Force of Tanzania (JWTZ in Swahili acronyms), the·\ University of Dar es salaam and the then IDM Mzumbe (a former colJege). ln re-examination the PW.I said tb.at, one of his companies (firms) was:,.:·. registered as Felix Bwogi t/a Eximpo Promotions and Services and the other as:... Felix Bwogi t/a Olympia lnte1national Services. He also said, there is no any difference between the names of "Felix Bwogi" appearing in the publication and· . "Felix Bwogi t/a Eximpo ·Promotions and Services", and that, according to the Court of Appeal order (exhibit P. 3) the defendant paid him compensation. PW. 2 one Mr. Rashid Nyali testified that he once worked with PW.1 at his office at the premises as a Mechanic of Office Machines, but he could not remember the name of the office. One of his duties was to receive orders for servicing machines from PW.I clients and assign other mechanics to perform the services. I:Je is still working with him to date. He ~!so used to receive some documents and handle them to PW. I. He thus once received Bank Paying Sleeps from the Registrar of Buildings (exhibit P. 7) and handled them to PW.I, but he did not know who was paying who through the exhibit P. 7. The ,vitness then · tendered in evidence the following documents which he said he received and gave_ to Mr. Bwogi without knowing the contents as he does _not know how to read. A letter from one Anderson (exhibit P. 8), letter from All African Continental : Enterprises (exhibit P. 9), list of customer names (exhibit P. 10), document titled : Olympia International Services (exhibit P. 11) and a letter from the defendant.· dated 6/6/1996 (which ht had found thrown at the door) as exhibit P . .12. PW. 2 also testified that, the said Anderson once told him that he had been blasted by PW.1 clients who complained that the PW.1 business belonged to conmen following the publication. Such clients could not thus give business to •,. PW.I. He also testified that in 2002 TAZARA (a corporation) could also not give •: business to PW. I Its Manager, one Mutakyawa told him (PW.2) that he could not . Page 4 of 11 give business to PW. I office as it was an office of conmen following the p1Jblication. When cross examined by the learned counse~ for. the defendant, PW.2 said that, he was not employed by PW. I in the office, but heJ operated under contracts. But he is no longer in that office. He did not know the purposes of the money paid through the Bank Paying Sleep (exhibit P. 7). He added that, though he does not know how to read, he knows how t·o write. PW.2 further said that he .worked with PW.I from 1987-2001, and though he knew that the exhibit P. 12 was written by the defendant to the effect that the plaintiff was a conman, he does not know how to read. When examined by the court PW.2 said that though he does not know how to read, he could still remember the documents he had received at the PW. I office 13 years ago, and that since 2001, he has not worked in the premises with PW.I. Like the plaintiff, defendant brought two witnesses. The first Defence Witness (DW.l) one Japhet James Mwanasenga testified that he is the Debt Collection Manager for the defendant charged with the major .role of collecting arrears of rent from the defendant's tenant~. He added that, Felix Bwogi is a long- time defendant's tenant in the premises which was meant for commercial purposes. However, he did not pay rent until when he was evicted from the premises in 2013. Previously, the tenaJcy agreement was between Felix Bwogi and the Registrar of Buildings, but in 1990 the defendant took over fro111 the Registrar of Buildings. Though at the beginning of the contract the···rent was Tshs. 300/= the same changed from time to time. DW.1 also testified that, on 29/3/1994 the defendant published a notice in a newspaper (exhibit P. 6) showing the list of names of the defendant's tenants with outstanding reht and asking them to pay their respective outstanding rents. The d name of Felix Bwaogi was also in the list. The publication shows that he had an outstanding rent of Tshs. 423, 000/=. The monthly rent had then risen to Tshs. 1, 800/=. The aim of the publication was to ask the debtors to pay their respective arrears of rent; however Felix Bwogi did not pay the rent despite the notice. The witness produced in evidence the Tenant History Card (exhibit D. l) showing how Felix Bwogi was indebted to the defendant.·:He also said that the defendant's tenant was "Felix Bwogi" and not "Eximple Promotions and Services". The DW.1 further· said, the plaintiffs claims in this _case are· baseless because the publication was Pages of 11 , justified for the·indebtedness of the said Felix Bwogi. The witness thus prayed for- the dismissal of the case with costs and urged this court to order Felix Bwogi to pay the areas of rent at the tune ofTshs. 46, 932, 160/=. ·· In cross-examination DW.l -~aid that, though the court order (exhibit.P. 3) relates to a different case from the one at hand, he did not kno~ before coming to _ court that the plaintiff had worn a case against the defendant and that exhibit P. 4 _· shows that the rent in 1980 was Tshs. 300/= per month. But that did not mean that p the rent could remain the same indefinitely. He also said that the defendant had · I informed Felix Bwogi and its o~er tenants on the increased rent before the publication. He however, did not have the copy of the ~otice in court. He added __ that Felix Bwogi replied to the notice that he could not pay the increased rent as he :' had a case in court. Before publishing the notice in the newspaper some efforts to _ recover the rent had been made by the defendant but unsuccessfully. For this' reason, he insisted that the publication in the newspaper was justified as another way of notifying Felix Bwogi of his debt. He testified further that the payment • made by the defendant to Felix Bwogi through exhibit P. 7 were not related to the _ rent, the defendant could not thus settle off that payment with the outstanding rent ·. of Felix Bwogi. DW.1 also said in fu1iher cross-examination that, though the demand notice .·- (exhibit P.12) served by the defendant to Felix Bwogi in 1996 (two years after the ·. publication) showed that the outstanding rent was only 184, 310/= which was less ._: than the sum shown in the publication, that might have been a typing error. But the ·_i_ ·_ • truth is shown in the Tenant History Card (exhibit P. D.l). He added that though··,:. exhibit P.2 shows that Felix Bwogi is the owner of the firm called Eximpo · Promotions Services, the defendant;is not related in any way with that said firm. In re-examination DW.1 testified thus; He is not aware of what happened in 1987 since the ·defendant was not, in existence. It was the Registrar of Buildings who was . iandlord to Felix Bwogi at that time, hence the court order ih tha~ time related to the Registrar of Buildings. DW.2, Mathew Benard Kabunga testified he was employed by the defendant "_:- in 1981 as· a Housing Officer and he raised up to the pqsition of as a legal officer._ ,, though he is not currently working with it. He knows th~t Felix Bwogi was tenant · to the defendant in the premises, but he ·had a tendency of not paying rent in time. ·Page 6 of 11 f1,', I I . . That fact was discovered in 1990 when the Registrar of Buildings and defendant were merged. Efforts to collect the rent faifed; hence the defendant published the . . .however, include the name of "Eximpo Promotions and S~rvices". The publication . list of its debtors, including Felix Bwogi in the newspaper. The publication did not was a normal procedure of notifying the debtors of .their obligations, it did not lower the respect ofFelix Bwogi, hence justified. The plaintiff is thus not entitled to any claim. DW.1 also testified that, the court order (exhibit P. 3) did not mean that the rent ofTshs. 300/= per month could not be raised. During cross-examination DW.2 said, the Registrar of Buildings and the defendant were different institutions, but were merged in 1990 by virtue of Act No. · 2 of 1990. 'However,, lease agreements entered before that time were not affected by the merging. The outstanding rent of Tshs. 423, 000/= shown'in the publication was a result of the defendant's official documents. ,He added that thought the premi.~es were for commercial purposes .the publication did not relate to the business of Felix Bwogi. The tenant in the. premises was "Felix Bwogi" and not "Eximpo Promotions and Services". He also said that he is not sure if the amount of Tshs. 29, 000/- indicated into the letter_(exhibit P. 5) reached the defendant's account; otherwise the defendant could have issued a receipt to that effect. He added that after the publication, Felix Bwogi might have paid some money that is why exhibit P. 12 shows a lesser amount of his outstanding rent compared to the amount that had been published. In re-examination he said that, the defendant is not related to the transactions that Felix Bwogi entered with other persons. :" \ Having considered the evidence above, I engage myself in testing the issues. As my adjudicating plan, and for purposes of convenience following the nature of the issues framed, I opt to start with the·· second issue of whether or not the publication was malicious and with. intent to defame the plaintiff. ,Ip. my view, and according to the law of tort related to defamation, one cannot properly test this .. issue bef9re. tesd~g a sub-issue of ·whether or not the publication its self was defamatory to the plaintiff. I now test this sub-issue first. Before I proceed to decide on the sub-issue, I will briefly re-state the law on the tort of defamation. The tort is define~ as a malicious publication of a false ·· statement which tends to lower a person in an estimation of right thinking members of a society generally, or which tends to ma\ke them shun or avoid that person, see Page 7 of 11 , { 1 j ··; ,,' the decision by the Court of Appe3:l of Tanzania (CAT) in the case of Said Ali _ Maswanya v. Africa Buyer (1981) TLR. 221 anq th:e -_case of Theonestina · , Rwekalike and another vs. R. Bina1t1:ungu (1973) ~LRT No. 95. The case of · Peter Ng'homango. .v~ Gerson M.K. Mwangwa & ahother, High Court Civil Case No.1 of 1993, at Dodoma (unreported) also· supports this definition. . Commentators of the law of torts such as Winfield and Jolowcz in the book titled WINFIELD AND JOLOWCZ ON TORT, 9TH EDDITION, SWEET & MAXWELL, LONDON, 1971 (ATP 245 -255) also subscribe to the definition ... The same definition is envisaged by the provisions of S. 38 and 39 of the News Papers Act, Cap 229 (R.E. 2002). · The law further guides that in order to prove a claim under this branch of the law of tort, one must ·prove the following ingredients cumulatively and not alternatively; there must be a defamatory statement made by the defendant, which said statement must be false and directly referred to the plaintiff and it must be : p published, see Hamis v. Akilimali [197i] HCD. n. 111. Again, it is instructive in law that in order for the court to decide whether or not the words _complained of are defamatory the court must construe the words according to the'fr fair and natural meaning which would be given to them by reasonable persons of ordinary intelligence, see A. S. Maskini v. Joe Rodrique and another [1975] LRT n. 65. In the matter at hand, and according to the pleadings and evidence, it is not .... disputed that the defendant actually published the words complained of in exhibit - P. 6. The words were in Swahili, but were to the effect that the defendant had ·,: ' ' decided to publish the list of its tenants with outstanding r.e--nt with the intention of asking them to pay the same, otherwise their respective tenancy agreements would be tenninated and they would be evicted from the premises. Alternatively the defendant would take legal actions against the defaulting tenants. The name of "Felix Bwogi" appeared as the third in the list showing that he was tenant in the premises with the outstanding rent ofTshs. 423, 000/=. 1 My concern at this stage is on the ingredients of the tort of defamation which must be proved cumulatively as I hinted previously. According to the Hamis v. ··, Akilimali case (supra) one of the crucial ingredients to be established in evidence . · before a defendant is found liable for the tort is that the statement complained of ·.-- must be directly refe1Ted to the plaintiff. I will now :~pquire if the statement Page 8 of 11 ., • ' • I \ • ... .... \ t . ' complained of in the case at hand actually referred to the plaintiff As hinted before, and according to the plaint, the plaintiff in this suit is a business firm going by the name of "Felix Bwogi t/a Eximpo Promotions and Services". The publication however, did not make any reference to this firm namely "Felix Bwogi t/a Eximpo Promotions and Services." It unqisputedly mentioned "Felix Bwogi" as a natural person. Under such circumstanc'es I cannot say that the publication directly referred to _the p]aintiff in this case. I understand from .the undisputed .evidence that the said "Felix Bwogi" is a natural person and the proprietor of the business n~med "Eximpo Promotions and Services" dully registered under the Business Names (Registration) Act, Cap. 213 • R. E. 2002. ·I am also live that the registration of a business name under s. 4 of Cap. · 213 does not create a distinct legal personality of the firm from its partners as held in the case of Mboteye General Business and Supplies Company v. Mbeya Cement Company Ltd and another, High Court Civil Reference No. 2 of 2008, · at Mbeya. However, upon such registration of the business name, the law allows a suit to ~e filed in the name of the registered business name, see Order XXIX of the Civil Procedure Code, Cap. 33 R. E. 2002. In the case of Akena Adoko's Chambers v. Mohamed Maganga (1980) TLR. 134 it was also held that, a suit can be filed in the name of a firm only if the firm is registered u?der Cap. 213, otherwise it must be filed in the parti~s own name. The decision in the case of the State Trading Corporation v. Eastern Pro_vince Transport Co. [1972) HCD 72 also supports that stance of the law. However, the position of the law just stated herein above does not mean that defaming a natural person in his own or personal name means also defaming his business firm registered under Cap. 213 .-· The pl?intiff in this case cleverly combined the two names of "Felix Bwogi" and "Eximpo Promotions and Services" joining them by the letters t/a (meaning trading as, according to him). Apparently that style was targeted to justify the claims, especially the one related to loss of business. But I am not convinced that· the style is supported by law for the following reasons; that the registered name of the firm at issue is not "Felix Bwogi t/a Eximpo Promotions and Services" as it appears in the plaint, but "Eximpo Promotions and Services;,_ as shown in exhi-1?.it P. 2. The second reason in that, the name appearing in the publication is "Felix Bwogi" and not "Felix Bwogi t/a Eximpo Promotions and Services". Page 9 of 11 , , I 1 , ' •: ·"l',t· For the above grounds, this may not be a proper forum for deciding whether .:· or not the plaintiff was entitled to bring the suit under that nam~ of "Felix Bwogi .·: t/a Eximpo Promotions and Services", but for purposes of proving the "tort of / defamation, the abov~ reasons entitles this court to decide that the publication did ·.: . not directly refer to the plaintiff, and I so hold. Having held as above, I· \. consequently find that, as long as this significant ingredient of the tort of defamation has not been proved in this case, then the words cannot be termed as defamatory to the plaintiff in law. The sub-issue is thus answered negatively. I further find that, the findings I have· just made compels me to answer the second issue negatively, and I accordingly do so. Having answered the second issue negatively, and according to the anatomy of the fram.ed issues in this case, I am of the settled view that the first and third issues suffer a natural death as their testing depended much on the second issue · : being dete1mined positively. I will thus not examine them (first and third issues, i. · e. whether or not the publication was true and whether the plaintiff suffered ~amages foll~wing the publication, respectively). Regarding the fourth issue related to. the reliefs entitled to the parttes, I am minded that, as long as I have decided the second issue negatively, and declined from testing the first and third issues for being unnecessary, the law compels me to agree with the defendant's prayer.of dismissing the suit. The plaintiff is also liable .. , to pay costs since the general rule is that, costs follow event unless the court ./ records reasons for not following that general 1ule, sees. 30 of the Civil Procedure Code, Cap. 33 R. E. 2002 and the Court of Appeal decision in the case of Njoro ·~ Furniture Mart Ltd v. Tanzania Electric Supply Co Ltd [1995] TLR 205. In the case under discussion I see no any reason justifying my departure from that general rule. " On the other hand, at this juncture I must clearly declare that I will not , : positively consider the prayer made by DW.1 ( during his testimony) for an order ·:··. directing the plaintiff to pay the atTears of rent that are currently outstanding at the · tune ofTshs. 46, 932, 160/=. The single reason for this course is that, the defendant ·:. did not counter-claim for that relief in his written statement of defence. In my . settled views, and as I recently held in the case of the National Institute o~ . Transport v. The Editor, Dira ya Mtanzania, High Court Civil Case No. 15 of t Page 10 of 11 2009, at Dar es salaam (unreported), parties to court proceedings are limited to their pleadings, the reliefs to be granted by the court thus follow suit. Otherwise there may be unfair trials through ambushing adjudication which is not in the .·• interests of justice. The right to fair trial is a constitutional right to all the parties to court p~oceedings and it is enshrined under article 13 (6) (a) of the Constitution of the United Republic of Tanzania, 1977, Cap. 2 R. E. 2002. Courts of law cannot thus violate this right in any way, including granting un-pleaded reliefs to parties. Having observed as above, I hereby dismiss the suit with costs. It is accordingly ordered. JHK. UTAMWA JUDGE 06/11/2014 06/11/2014 CORAM; Hon. Utamwa, J. For; Plaintiff; Mr. Nyakamo advocate. For Defendant; Mr. Sekule advocate. · · BC; Mrs. Kaminda. ·., Court; Judgement delivered in the presence of Mr. Nyakamo advocate for the plaintiff and Mr. Sekule advocated of the defendant in court,. this 6th day of November, 2014. JHK. UTAMWA JUDGE .• 06/11/2014 '• 6 Page 11 of 11 .