FELIX GAMALIEL MOSHA VS THE DIRECTOR THE CITIZEN NEWS PAPER LTD AND ANOTHER 1

IN THE COURT OF APPEAL OF TANZANIA AT MOSHI rCORAM: NPIKA. J.A., GALEBA. 3.A.. And MGONYA. J.A.) CIVIL APPEAL NO. 247 OF 2021 FELIX GAMALIEL M O S H A ............................................................... APPELLANT VERSUS THE EDITOR, THE CITIZEN NEWSPAPER ........ ..... FIRST RESPONDENT MWANANCHI COMMUNICATIONS LTD...........................SECOND RESPONDENT (Appeal from th e Judgment and Decree of the High Court of Tanzania at Moshi) (Mutungi, J.) dated the 20th day of November, 2020 in Civii Case No. 8 of 2018 JUDGMENT OF THE COURT 31st May & 13th June, 2024 N P IK A , 3.A.: This appeal is the result of a defamation litigation filed by the appellant, Felix Gamaliel Mosha, in the High Court of Tanzania at Moshi ("the High Court") against the Editor - the Citizen Newspaper and Mwananchi Communications Ltd., the first and second respondents, respectively. The appellant is currently appealing to this Court after losing the action. The case's abridged facts are as follows: The appellant is a businessman, a retired international civil servant, and an acclaimed l economist. He was the founding Chairman of the Board of Directors of NICOL, a public limited company that was established under the Companies Act, Cap. 212, for the purpose of managing shareholder investments. On the opposing side, the first respondent is the Editor of "The Citizen," a daily newspaper with a widespread circulation in the nation. The second respondent, a limited liability corporation incorporated in Tanzania, is the printer and publisher of "The Citizen." It is widely acknowledged that The Citizen newspaper published a story on 14th December, 2017, entitled "NICOL takes ex-chairman Mosha, CEO to court"(exhibit PI), which included the appellant's photograph. A portion of the narrative is as follows: "The refusal by former National Investment Company Limited (NICOL) chairman Felix Mosha and CEO Kathleen Armstrong to hand over office is now blamed for causing the company losses running into millions of shillings. Mr. Mosha and Ms. Armstrong, who currently lives and works in the US, were removed from their positions during an extraordinary meeting in April 2012 over alleged misuse of ShlO billion and performance failures...." The appellant strongly disagreed with the article upon reading it. Consequently, on the following day, 15th December, 2017, he wrote to the second respondent to refute the publication, specifically the assertion that he had misappropriated TZS. 10.0 billion of NICOL's funds. He requested a retraction of the story and an apology, and the institution of legal proceedings would follow if these demands were not met. The respondents were unfazed. Therefore, on 17th December, 2017, The Citizen published another article titled "Mosha, Armstrong case up for mentioning at court"(exhibit P3), which contained the following information: "On Monday 18 December, the Kisutu Magistrate's Court will mention a case facing former National Investments Company Limited (Nicol) chairman Felix Mosha and CEO Kathleen Armstrong. The two, who currently live in the United States, are being accused of causing the company losses running into tens of millions of shillings. They were removed by shareholders from their positions during an extraordinary meeting in April 2012 over alleged misuse of ShlO billion and performance failures." A further but final publication concerning the appellant was carried in The Citizen of 5th January, 2018 in an article titled: "Nicolpledges to pay dividend next month '''(exhibit P4) with the following contents: "Last month shareholders of the National Investments Company Limited (Nicol) blamed the equity firm's failure to declare dividends since 2005 on business tycoon Felix Mosha and his team, saying the former chairman and his group owed the investment company for mismanagement of office and leading it to a path of failure." The appellant further pleaded in his amended plaint that the publications were defamatory of him in their natural and ordinary meaning, as follows: one, that he is a corrupt and unscrupulous individual who has misappropriated NICOL's funds in the amount of TZS. 10.0 billion. Two, that he is currently being accused of criminal offences in the Kisutu Magistrate's Court. Three, the reason why NICOL was unable to pay dividends was due to his mismanagement of the company. Finally, that he was concealing himself in the United States of America. Based on this, he prayed for reliefs: first, the payment of TZS. 350,000,000.00 in special damages; second, the award of general damages for mental anguish, anxiety, social embarrassment, and stigma; third, the issuance of a permanent injunction to prevent the respondents from republishing the offending publications; and fourth, the payment of the action's costs. The respondents acknowledged that they had published the three articles as claimed, but they denied that they were defamatory. Furthermore, they contended that the publications were both truthful and privileged because they primarily provided accurate information about the status of a civil case against the appellant at the Resident Magistrate's Court of Dar es Salaam in Kisutu. The respondents asserted that the article was based on information provided by NICOL Chief Deputy Executive Officer Mr. Erasto Ngamilaga to The Citizen and the public regarding the company's commitment to paying dividends to its shareholders in relation to the third publication. The respondents specifically denied that the publications could be interpreted as implying that the appellant was a corrupt individual or a criminal, nor that he was in hiding in the United States of America. The trial focused on four issues that the High Court drew up with the consent of the parties: one, whether the publications were defamatory of the appellant; two, whether the publications were made intentionally, falsely and maliciously; three, whether the publications were justified and privileged; and finally, what reliefs are the parties entitled to. The appellant provided testimony in support of his claim as PW1. .Additionally, he presented two witnesses to substantiate his argument: PW2 Fredrick Malya, a business associate, and PW3 Shilwa Lubawa Kiliaki, a founding member of the NICOL Board of Directors and former chairperson of the Investment Committee. Conversely, the respondents were represented by DW1 Samwel Kamndaya Tindwa, a journalist and editor of The Citizen newspaper. The High Court was unimpressed by the appellant's case. Therefore, it answered all the first three issues in the respondents' favour. The court concluded thus: "I have already explained in the second and third issues above, what the defendants did was to report the story which was the continuation o f the information they had about the company's progress and the fate of the shareholders who invested their money in the company. For them, reporting the said news didn't intend in either way to defame the plaintiff [the appellant herein], meaning that they had no malice, and they didn't publish anything which was false about the plaintiff." The appellant now contests the above conclusion on five grounds of complaint, specifically: 1. The Honourable Judge erred in law and fact in failing to hold that the impugnedpublications were defamatory o f the appellant. 2. The Honourable Judge erred in law and fact in considering and giving effect to matters which were not before the court. 3. The Honourable Judge erred in law and fact in accepting evidence alleged to be contained in documents which were not produced before the court. 4. The Honourable Judge erred in law and fact in failing to hold that there was no evidence to show that the publications werejustified. 5. The Honourable Judge erred in law and fact in making conclusions which were not based on the evidence before the court Mses. Neema Mtayangulwa and Rehema Kitaly, learned counsel, prosecuted the appellant's appeal. Conversely, the respondents were represented by Mr. Emmanuel Nkoma, learned advocate. Ms. Mtayangulwa initiated her submission with the first ground of appeal, asserting that a publication would be defamatory in accordance with section 35 (1) of the Media Services Act, 2016 ("the Act") if it is likely to harm the reputation of any individual by subjecting them to hatred, contempt, or ridicule, or if it is likely to harm their profession or trade by causing an injury to their reputation. She emphasised that a publication would not be defamatory if it is true or if it is a report of parliamentary or court proceedings. Ms. Mtayangulwa's subsequent argument was that to ascertain the issue at hand, it was necessary to inquire as to whether the publications in question were true. She argued that the learned trial Judge incorrectly asserted that the appellant was removed from the chairmanship due to the misuse of funds, despite the absence of any evidence to support this claim. With this mindset, she added, the learned trial Judge proceeded to look for evidence which would support her conclusion that the appellant was removed by the shareholders because of misappropriation of funds. After reviewing several findings made by the learned trial Judge in the light of the evidence on record, the learned counsel urged us to find the publications defamatory of the appellant. That they were intended to, and did in fact, portray him as a dishonest person, an embezzler of large sums of money belonging to NICOL, and an incompetent person who had gone to hide in the United States of America. Mr. Nkoma, on the other hand, concentrated on two assertions: the appellant did not dispute the existence of a civil case in the Resident Magistrate's Court at Kisutu, in which NICOL asserted losses of tens of millions of Shillings against the appellant. This case was the subject of the impugned publications. Second, the appellant was "removed from office by the NICOL's shareholders for the alleged misuse" of TZS. 10.0 billion, which was the sole allegation in the publication that irked him. The learned counsel subsequently examined the testimonies of PW3 and DW1, urging us to determine that the publications were not "defamatory because they are true." He specifically argued that PW3 acknowledged in cross-examination that the allegation of mismanagement of funds was substantiated by information the respondents received from NICOL's interim management. Additionally, DW1 argued that the publications could not be derogatory of the appellant, as they were partly founded on the findings in NICOL's Annual Report of 2016, and they concerned the reporting of court proceedings. The definition of "defamatory matter" is outlined in Section 35 (1) of the Act, which Ms. Mtayangulwa referenced in her argument: 35. -(1) Any matter which\ if published, is likely to " injure the reputation o f any person by exposing him to hatred, contempt or ridicule, or likely to damage any person in his profession or trade by an injury to his reputation, is a defamatory matter." The above definition undoubtedly encapsulates the common law definition of a defamatory statement, a version of which is provided by authors Edwin Peel and James Goudkamp in Winfield and Jolowicz on Tort, 19th Edition, Sweet & Maxwell, London, 2014, in Para. 13-002 thus: "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 o f right-thinking members o f 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...." In Hamza Byarushengo v. Fulgencia Manya & 4 Others, Civil Appeal No. 246 of 2018 [2022] TZCA 207 [14th April, 2022; TanzLII], we excerpted 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 o f right-thinking members o f 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." In determining whether a statement is defamatory in the first place, the issue of truth is irrelevant. In this sense, Winfield and Jolowicz on Tort, {supra) states, in Para. 13-006, as follows: "Truth is normally a complete defence to an action for defamation. [...] But the issue of whether a statement is true is separate from the question of whether the statement is defamatory, which looks solely to the effect of the statement upon the claimant's reputation . "[Emphasis added] Thus, in resolving whether a statement amounts to libel, section 36 of the Act states as follows: "36. -(1) A person shall be deemed to make publication o f 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 o f 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. "[Emphasis added] li Although subsection (2) above acknowledges that the meaning of an alleged libellous publication may or may not be directly or completely expressed in the publication in question, subsection (3) clarifies that the meaning of such a publication and its application to the person alleged to be defamed may be derived from the alleged libel itself, any extrinsic circumstances, or a combination of the two. This implies that, initially, the alleged libellous publication may be defamatory in the ordinary and natural sense of the words used in it. Consequently, the words are libellous per se, as they are defamatory on their face. In certain situations, the defamatory meaning may need to be provided through special substantiation of extrinsic facts or contexts. In this regard, words may appear innocent at first glance; however, their publication may constitute defamation. Consequently, they are libellous per quod. In yet another instance, the defamatory connotation may be contingent upon the publication's intrinsic expression and the relevant extrinsic contexts. We should interpose here and offer two observations: Initially, Ms, Mtayangulwa and Mr. Nkoma both equated the question of whether the publications complained of were defamatory to the question of their truthfulness in their respective submissions. To this point, it should be evident that the issue of whether the publications were true is distinct from the question of whether they are defamatory. Therefore, to resolve the matter, it is necessary to evaluate and ascertain the impact of the three publications on the appellant's reputation in accordance with section 36 (3) of the Act. That is, either from the publications themselves {ex facie) or from any extrinsic circumstances, or a combination of the two. Secondly, the appellant in the present case asserted that the publications in question were defamatory on their face. This is because he did not plead any extrinsic circumstances that would have provided a defamatory context to the words that were the subject of the complaint. We begin our scrutiny of the publications by looking at the wording in the first story headed "NICOL takes ex-chairman Mosha, CEO to court", without losing sight of the fact that it supposedly reported on a court proceeding. In our view, the claim that the appellant was NICOL chairman who was removed from his position over alleged misuse of TZS. 10.0 billion and performance failure is ex facie defamatory in the mind of the right- thinking members of the society. We would readily agree with the appellant the allegation of financial misappropriation and performance failure imputed to him as corrupt, unscrupulous and incompetent person alleged to have mismanaged such a huge sum of money of the investment company. The respondents may have made a wise decision to employ the term "alleged" to qualify "misuse" and "performance failure" to mitigate or ameliorate the implication of embezzlement, sleaze, and incompetence. However, we do not believe that this prevented a reasonable reader from interpreting the story in a defamatory manner. Nevertheless, we are of the opinion that the phrasing that the appellant "currently lives and works in the United States" does not, on the face of it and in the absence of any extrinsic circumstances, imply that he was a fugitive in the country, evading the long arm of justice, A meaning that is so disparaging would be preposterous and fanciful. The second publication, "Mosha, Armstrong case up for mentioning at court," adds a new dimension in addition to repeating the defamatory statement that the appellant was removed from office "over alleged misuse o f Sh'10 billion and performance failures. "It was reported that the appellant was "accused o f causing the company losses that amounted to tens of millions o f shillings. "We believe that the statement objectively implied that the appellant was facing a criminal accusation in court for causing financial loss to his company, in the natural and ordinary meaning of the terms used. Lastly, we address the article "Nicol pledges to pay dividends next month"of 5th January, 2018, which details that "the former chairman and his group owed the investment company for mismanagement of office and leading it to a path of failure." We concur with the appellant's assertion that this article implied that the inability of NICOL to distribute dividends during his tenure was attributable to his incompetence and mismanagement of the company. The appellant's blameworthiness for NICOL's circumstances would be inferred by any logical reader of the narrative. Considering the preceding discussion, we hold that the publications in question were defamatory to the extent indicated. Consequently, we find the merit in the first ground of appeal. The appellant argued the second and fifth grounds together. Both grounds censure the learned trial Judge for considering and giving effect to extraneous matters instead of basing her findings on the evidence on record. Submitting on the aforesaid grounds, Ms. Mtayangulwa was resolute that the learned trial Judge wrongly set out certain findings of fact as a springboard for her conclusions against the appellant. Elaborating, she mentioned the following as statements by the learned trial Judge as being unsupported by the evidence on record: one, the finding, unveiled at page 238 of the appeal record, that the respondents' witness (DW1) and the appellant knew each other even before the lawsuit before her was instituted. She claimed that by this finding the learned trial Judge implied, in effect, the testimony of DW1 was credible because he knew the appellant and his work performance for his company. Two, that the respondents were very close to NICOL and that they knew so well about the company's progress (again at page 238 of the appeal record). Ms. Mtayangulwa contended that there was not even a scintilla of evidence to show that DW1 and the appellant knew each other. Nor was there any shred of evidence showing that the respondents were close to NICOL. Finally, the learned counsel challenged the learned trial Judge's premise that it was undisputed that the appellant was removed from NICOL due to the alleged misuse of funds. Ms. Mtayangulwa was steadfast that the learned trial Judge's approach was simplistic and misguided as it hinged on whether the appellant was removed from his position in April 2012 because he had misused TZS. 10.0 billion, the property of NICOL. She maintained that there was no proof of the shareholders' meeting having been conducted and what was resolved in that meeting. She emphasised that no minutes of the alleged meeting were tendered in court. The learned trial Judge's findings were not founded on the purported extraneous matters, Mr. Nkoma argued in rebuttal. Furthermore, he contended that the impugned findings were supported by the evidence that was on record, which included DWl's testimony regarding his interactions with the appellant and NICOL during various meetings. He conceded that the respondents did not submit any minutes of the alleged April 2012 meeting or the NICOL's Annual Report of 2016. However, he contended that PW3's testimony revealed that the respondents' additional source of the published material was information obtained from NICOL's interim management. We have painstakingly reviewed the evidence on record in the light of the contending submissions of the learned counsel. It occurs to us that the learned trial Judge seriously misapprehended the evidence on record, particularly the testimony of the respondents' witness (DW1). We shall demonstrate shortly. Going by his testimony, DW1 (the first respondent's editor) undoubtedly appeared to be very well informed about the activities of NICOL from its fledging times in the early 2000s when he was serving, initially, as a cub reporter until the time material to this dispute. Apart from chronicling several of the events that he attended involving NICOL, the Capital Markets and Securities Authority and the Dar es Salaam Stock Exchange, among others, he averred that he incessantly followed up NICOL's operations and activities. Yet, nowhere in DWl's testimony did he suggest that he and the appellant knew each other before the lawsuit was instituted. Certainly, he did not suggest that the respondents were very close to NICOL nor did he claim that the respondents knew so well about the company's progress. It was only DW1 himself who claimed to know about NICOL's track record from its fledgling times in 2004. The last impugned finding needs a different but equally careful treatment. For a start, the appellant evidently prevaricated in cross- examination when questioned on his alleged removal from chairmanship, as shown at page 128 of the appeal record: "I remember the meeting that was convened in April 2012. The decision of the meeting regarding m y status of my chairmanship was not known to me. I was never removed by the shareholders from the office. The office was invaded in 2014 and 2015 by people alleging that they were heads o f NICOL "[Emphasis added] We are compelled to inquire as to how the appellant could have been unaware of the meeting's outcome, given that it significantly affected his position as NICOL Chairman. In his response, he maintained that he was never removed from office by the shareholders, a claim that is likely not entirely accurate. However, he also claimed that NICOL was "invadedin 2014 and 2015 by individuals who claimed to be the heads o f NICOL " At this juncture, it is evident that he was removed from office, regardless of the reason, and that he contested its legitimacy. This is the reason he refused to surrender the office and company's motor vehicle, which led NICOL Instituting a civil action against him and Ms. Armstrong in the Resident Magistrate's Court at Kisutu to compel the surrender of such company's properties. In the above excerpt from the appellant's testimony, he claimed that he was unaware of the resolution of the shareholders' meeting regarding his fate. However, he subsequently altered his stance during further cross- examination: "I understand the claim is on the motor vehicle return and damages in monetary terms against me. I got a report of the April meeting from my colleagues. From the report there was no dear 19 statement at all why I was removed. What I know [is that] it was not financial. It is not true that I failed to manage the funds of NICOL. I had no grudges with the NICOL Management. The removal was from C.M.A. but other shareholders went to remove my Board." [Emphasis added] Based on the foregoing, we find it established as a fact that the appellant was removed from his chairmanship of NICOL's Board. Whether the said removal was valid or illegal, is not our preoccupation. Moreover, whether the removal was due to misuse of the company's funds is an issue we shall interrogate when dealing with the fourth ground of appeal. In conclusion, we find merit in the second and fifth grounds of appeal to the extent stated above. The third complaint faults the learned trial Judge for acting on documents that were not tendered at the trial. The appellant essentially critiques the learned trial Judge's reasoning and finding at pages 240 and 241 of the record of appeal on the basis that it was founded on such documents: "Despite the fact that the amount o fmoney allegedly misused was not stated by the plaintiff [the appellant], the defendants' [the respondents'] witness went on testifying that the same had been reflected [in] the company's 2016 annual financial report. From such evidence, it is obvious that the defendants got the said figure from the interim management o f the company...." Ms. Mtayangulwa contended that the learned trial Judge erred in making the above determination based on the Annual Report of 2016 of NICOL, which was not submitted as evidence, citing Mwajuma Mbegu v. Kitwana Amarsi [2004] T.L.R. 410. Mr. Nkoma responded by asserting that PW3's testimony demonstrated that the respondents were provided with information by NICOL's interim management, which served as the foundation for their news articles, even though the said annual report was not tendered as evidence. Respectfully, the impugned finding was founded on DWl's testimony, not the company's annual report, as evidenced by the above extract from the learned trial Judge's judgment. It would be a stretch to suggest that she relied on the report she had never seen, even though she undoubtedly referenced DWl's assertion that the amount of misappropriated funds was specified in the report. Her primary finding, that "it is evident that the defendants obtained the aforementioned figure from the interim management o f the company/' is self-evident. The respondents’ source of information, as indicated by DWl's testimony, was the interim management of NICOL. It is inevitable that the case of Mwajuma Mbegu {supra) has been cited out of context. The third ground of appeal is unsuccessful. Lastly, we address the grievance that the learned trial Judge committed an error of law and fact by not rejecting the respondents' defence of justification. At the forefront, we wish to observe that section 37 (a) of the Act provides the defence of "truth", known at common law as "justification," against defamation. The said provision stipulates that a defamatory matter is not unlawful if it is true and that it was made for the public benefit: 37. Publication o f defamatory matter concerning a " person shall be unlawful within the meaning o f this Part; un/ess- (a) the matter is true and it was for the public benefit that it is published; or (b) it is privileged as one o f the grounds for the reasons provided under this A c t" Whereas the defendant in an action for defamation bears the burden of proof to establish the defence of truth on a preponderance of probabilities, it should be borne in mind that the law requires him to establish that the publication complained of is substantially true. In W infield and Jolow icz on Tort, (supra), in Para. 13-044, the authors state that, in discharging his burden of proof: '[tjhe defendant need not show that the statement is precisely true in every particular: what matters is whether it is substantially true and it has been said that jou rnalists \heed to be perm itted a degree o f exaggeration even in the context of factual assertions'. Subject to that, it is a general principle that the defence must be as broad as the charge, and must cover the precise charge. "[Emphasis added] On the ground of appeal at hand, Ms. Mtayangulwa argued that the respondents led no evidence showing that the publications were justified, She said that DW1 stated clearly and truthfully that the publications were specifically based on the ongoing proceedings in the Resident Magistrate's Court at Kisutu, but the said case did not allude to the alleged misuse of TZS. 10.0 billion and that all DW1 read and based the stories on, was NICOL's annual report of 2016 which was not tendered at the trial. Accordingly, she charged that the following finding by the learned trial Judge, shown at page 240 of the record of appeal, was not backed up by any shred of evidence: "As I have pointed out above, there are some facts which are not disputed in the said publications, and among the facts is the removal o f the plaintiff from his position for [alleged] misuse o ffunds. This is also acknowledged by PW1 and PW3 where both ... testified that the plaintiff was illegally removed from the office o f the [alleged] misuse o f the company's funds." For his part, Mr. Nkoma disagreed with his learned friend. He countered that DW1 asserted that the news stories complained of concerned the ongoing civil proceedings at the Resident Magistrate's Court at Kisutu against the appellant and that the allegation of misuse of funds was stated as background information based on NICOL's Annual Report. He urged us to consider the evidence that the appellant did not dispute the existence of the aforesaid proceedings against him and that PW3 did not dispute the allegation of misuse of funds by the former management. In rounding off his argument, Mr. Nkoma contended that the publications in issue were also privileged in terms of section 39 (a) of the Act, because they were a fair reporting of what was said, done or shown in the civil proceedings in the Resident Magistrate's Court at Kisutu. The respondents' defence of truth stands or falls on the evidence of DW1. To determine the defence's tenability and cogency, we now examine DWl's testimony along with the appellant's case. To begin with, according to DW1, the allegation of misuse of funds and performance failure was stated as background information based on NICOL's Annual Report, which was not tendered in evidence. He asserted that by 2012 all was not well with NICOL. As shown at page 156 of the appeal record, he adduced as follows: "Some shareholders wanted to [sell] their shares but now they could not do so [because NICOL was de­ listed from the stock exchange, hence its shares could not be traded]. They decided in 2012 to call an extraordinary meeting and removed the management group under the leadership o f Felix G. Mosha. They [installed] interim management and what followed [was a series] o f cases in NICOL between the interim management and Felix Mosha." As regards the ongoing civil proceedings in the Resident Magistrate's Court at Kisutu, DW1 adduced, as shown at pages 156 and 157 of the record of appeal, that: "Towards the end o f 2017, we sent ourjournalist to Kisutu where there was an ongoing case. It was the new management seeking to have properties [ worth TZS. 180.0 million] returned by Felix Mosha and his group. Apart from reporting on the case, we wrote something more by giving a background o f the story. We wrote [that] Fe/ix Mosha and one Armstrong (living in America) are accused o f misuse o f resources o f Nicol (those mentioned earlier). This aspect is found in the annual report o f 2016 where the management o f Nicol is stating [that] the past management had misused Nico/'s resources and cumulatively up to 2009, they had 11 billion loss...." Focusing on the third publication, DW1 testified, as unveiled at pages 158 and 159 of the record of appeal, that it informed 25,000 NICOL's shareholders how the new management of NICOL had improved the company's fortunes: "On 5/1/2018, it is the day we wrote our story referring to Nicol. This was after the new management had announced [that it] wiii give out dividends to its shareholders. We had also narrated the background for the benefit o f a new reader. In this case the background was the way the interim management progressed, and the old management had not given the shareholders dividends all the time it was in office. [..] The readers were being informed that the company o f 25,000 shareholders was eventually giving out dividends after failing to do so for ten years." DW1 acknowledged during cross-examination that the Kisutu case did not address the alleged misappropriation of TZS. 10.0 billion nor did it make any reference to it. Moreover, he stated that he did not possess the minutes of the shareholders’ meeting that resulted in the appellant's removal from office. It is also important to note that the annual report of 2016 that he referenced in his testimony was not submitted as evidence. The appellant and PW3, on the other hand, contended that the company was on a trajectory of success during their tenure in office and denied the alleged misuse of NICOL's funds. PW3, in particular, commended the appellant for his integrity and refuted the assertion that he was removed from his chairmanship. However, it is crucial to note that PW3 stated in cross-examination, as evidenced by pages 150 and 151 of the appeal record, that: "I am in Mr. Fe/ix Mosha's team as the Chairman o f the Board and me as a Board Member. We have not conducted Board meetings from 2012. I am aware o f the way companies are established and run. I am aware o f how legal meetings are to be conducted. The so-called interim committee (team) is the one running the Nicol affairs. It is the so-called interim team that has provided all the information. I am not the one to judge if [Thej Citizen should be blamed or n o t" We have anxiously scrutinized the above evidence in the light of the contending submissions of the learned counsel for the parties. At first, we accept the respondents' assertion that the statements complained of in the three publications constituted background information to the reader. Despite the disingenuous denials by the appellant and his witness (PW3), it is a fact that the appellant was removed from his chairmanship in April, 2012. Whether the removal was legal or not, we think it was improper and imprudent for the appellant and PW3 denying its existence. DW1 attributed the removal to an allegation of financial malfeasance, which he sought to substantiate with the information he obtained from NICOL's Annual Report of 2016, which was published in 2017. We are aware that the said report was not submitted as evidence. However, we, like the learned trial Judge, consider DWl's version to be more pre-eminent considering the appellant's prevarications on that aspect in his testimony, which we previously excerpted. To emphasise the point, we extract a portion of it once more: "From the report there was no d e a r statem ent at all why I was removed. What I know [is that] it was not financial. It is not true thatI failed to manage the funds o f NICOL " It is intriguing to consider the extent to which the appellant was certain that the removal was not motivated by financial considerations; however, he was uncertain about the precise reason for his "illegal" removal from office. Based on the evidence on record, it seems preponderant to us that, at least, by 2012 NICOL was veering off the path of success and that it was de­ listed from the Dar es Salaam Stock Exchange leading to its about 25,000 shareholders being locked out of having their shares traded on the stock market. Following the contested removal of the appellant's leadership, NICOL's interim management instituted the proceedings in the Resident Magistrate's Court at Kisutu to compel the appellant and Ms. Armstrong to surrender office and company's properties. Indeed, the subject matter of that case was neither a criminal charge nor an allegation of misappropriation of funds. At the material time, the interim management had reversed the downward trajectory of NICOL and it was on course to pay out dividends in 2017 for the first time in over a decade. This fact alone, does not speak glowingly about the appellant's previous leadership. There might be some exaggerations here or there, but, overall, we are satisfied that the three publications complained of were substantially true. The newspaper reported on the ongoing civil proceedings while providing the context in which the company operated in the past allegedly dismally. As hinted earlier, under section 37 (a) of the Act, even if a defamatory publication is true, for it not to amount to defamation, it must have been made for the public benefit. In the instant case, DW1 asserted that the publications complained of targeted to inform NICOL's shareholders numbering about 25,000 on the progress made at the time. We wholly agree and would add that given NICOL's position as an investment public limited liability company quoted on the stock exchange where its shares were traded, the publications were obviously for the benefit of the public at large. In this sense, we have in mind prospective investors in the company. On this basis, we find no merit in the fourth ground. In the end, we conclude that the appeal is devoid of substance and dismiss it with costs. DATED at MOSHI this 13th day of June, 2024. G. A. M. NDIKA JUSTICE OF APPEAL Z. N. GALEBA JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL The Judgment delivered on this 13th day of June, 2024 in the presence of the Ms. Neema Mtayangulwa, learned counsel for the appellant, appellant in person and Mr. Ambronce Nkwera, learned counsel for the respondent, is hereby certified as a true copy of the orginal. mm A. S. ChJllGULU DEPUTY REGISTRAR COURT OF APPEAL