HARUNI ALLY MUHAJIRI

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT DAR ES SALAAM CIVIL APPEAL NO. 15661 OF 2024 (Arising from Civil Case No.66 of 2023 delivered on the 4th day of June 2024 by Hon. G.A. Mwankuga, PRM) HARUNI ALLY MUHAlIRI •••••.•••••••.......•...••••••.•••.•••••••••.••••.••••••••••.• APPELLANT VERSUS HON.MUSSA SWEDI KAFANA .....•••••••••••••••••..•..............•..•.......• RESPONDENT RULING 3rd & 16th Oct.,2024 DYANSOBERA, J.: Before the Resident Magistrate's Court of Dar es Salaam at Kisutu, (hereinafter referred to as the trial court) the respondent sued the appellant claiming various reliefs including an order compelling the appellant to make an apology to the respondent and clearing the name of the respondent on the false and defamatory information disseminated by him (the appellant), an order for payment of TZS 100 million being compensation for the false and defamatory information disseminated by the appellant against the respondent, mental torture and general damages. After hearing the respondent's case, the learned trial Resident Magistrate decided in favour of the respondent, among other reliefs which the respondent was awarded is the appellant (appellant herein) to issue press 1 ... statement of apology and clearing the name of the plaintiff (respondent herein), the defendant to pay costs of the suit. The appellant was displeased with the trial court's decision hence preferred the instant appeal comprised of seven grounds of appeal. The hearing of the appeal was by way of written submissions, whereby the appellant stood on his own and the respondent was represented by Mr. Hashim Mziray, learned counsel. Submitting in support of the appeal, appellant opted to argue 1st,5th and 7th grounds jointly. The same applied to grounds 2 and 3. The 4th ground of appeal was abandoned. Submitting on the 1st, 5th and 7 grounds of appeal, the appellant faulted the learned trial Magistrate for having improperly evaluated the evidence on record and arriving at a wrong conclusion/finding that the respondent was defamed by the appellant. The appellant contended that the respondent did not adduce any evidence proving that there was defamation. He argued that the trial magistrate ought to have satisfied herself that the statement complained of in its natural meaning was defamatory, was an untrue or false statement and it had the effect of lowering the respondent's reputation in the estimation of the right-thinking members of the society. The appellant further argued that the phrase which triggered the trial magistrate in her finding that the appellant defamed the respondent is the word "Zero Brain" while on evidence the word claimed to have been used as per Exhibit P-l is the word "Ziro Brain" he thus wondering where the 2 trial magistrate got the word from and that the word meaning is "nothing" while the two words are not similar hence their meaning cannot be the same. The appellant argued that the respondent was required to prove his case to the required standard as per s.110 (1) of the Evidence Act. It was his complaint that the respondent failed to prove the case as he did not prove that he attended primary school to standard seven by tendering either an academic certificate or a living certificate which could prove that he was a primary school graduate. Further to that, the appellant asserted that the respondent failed to bring in court a witness who could support the fact that the went to a certain primary school and graduated on a certain year; in the stead, the trial magistrate believed and relied on a mere statement of the respondent that his education level is standard seven. It was the further contention of the appellant that from the judgment and evidence analysed by the trial magistrate, the respondent failed to prove to the required standard that his reputation was lowered, shunned or avoided by the right-thinking members of the society and how the said statement from WhatsApp group were published out of the group to reach his family. No evidence was adduced to prove these facts but the trial magistrate considered them without any evidence from any other individual out of the group apart from the PW-1 who was a member of WhatsApp group, the appellant lamented. Submitting on the 2nd and 3rd grounds of appeal that the trial magistrate was biased for disallowing the appellant's documentary evidence on a technical ground that the speed truck was about to expire and that she 3 could not extend it while knowing that the appellant was a layperson and had no legal representation. Instead, she allowed the respondent who was enjoying legal representation of an advocate to tender electronic evidence on the hearing date without serving the same to the appellant contrary to the law and procedure. In relation to the 6th grounds of appeal, the appellant argued that the tort of defamation is the creation of statute and case law. according to him, the respondent suit is found on libel which is a defamatory tort in a written form unlike slander which is on oral form as per rule 4 (1) of the Media Services (Defamation Proceedings) Rules, G.N No. 108 of 2019 whereby a suit found in tort must be instituted by way of a Petition and not a Plaint as the respondent did. In the appellant's view, it was wrong for the trial magistrate to proceed with the hearing and final determination of the suit founded on defamation by a plaint instead of the petition. To him, the respondent's suit was misconceived, improper and incurably defective and ought to have been struck out instead of being determined to its finality. To support this argument, the appellant relied on the case of Gombo Samandito Gombo vs Eva Ndewalia Joseph Nangela, Civil Case No 91 of 2023 High Court of Tanzania at Dar es Salaam (TanzLii). The court was urged to reverse the judgment of the trial Court and allow this appeal with costs. Replying the 1st, 5th and 7th grounds of appeal, the respondent's counsel submitted that respondent's case was built on strong, reliable and authentic evidence from PW1 and PW2 insisting that, as per 3rd and 4th pages of 4 • judgment, the respondent gave sufficient evidence which proved his case on the required standard. The respondent's counsel warned the appellant to employ grammatical techniques of the words which has nothing to do with the substance of the complained of tort. As to the level of learned the respondent attained, counsel contended that the issue of academic certificate is immaterial as the appellant in so far as the appellant was not justified to defame the respondent for, even a person who is not a Primary School graduate cannot be called 'zero brain'. On the 2nd and 3rd grounds of appeal which is based on the trial court being biased by disallowing documentary evidence of the appellant, counsel for the respondent argued that disallowing documentary evidence on legal reason cannot amount to bias. In reply to the 6th ground of appeal, the respondent's counsel submitted that the respondent was not supposed to comply with Rule 4(1) of the Media Services (Defamation Proceedings) Rules GN. No.108 of 2019 as his claims was not against any licensed media house or a registered journalist as provided for under rule 14 of the Media Services (Defamation proceedings) Rules GN. No. 108 of 2019. The court was invited to dismiss the appeal with costs. In his rejoinder, the appellant substantially reiterated his submission in chief. Having gone through the lower court's record and the parties' rival submissions the issue for determination is whether this appeal has merit. 5 In my analysis I will begin with the 6th ground of appeal as it is a point of law, then I will revert to the rest grounds of appeal, if the need arises to do so. In this ground, the appellant argued that respondent filed a defamation case at the trial court as a normal suit while he was supposed to file as directed by rule 4(1) of the Media Services (Defamation proceedings) Rules. He placed reliance on the case of Gombo Samandito Gombo vs Eva Ndewalia Joseph Nangela (Supra), whereby this court struck out the suit for that reason. It was his further submission that the trial court has to struck out the suit for that reason, he prayed this court to allow the appeal with costs. In reply advocate Hamza did not dispute the fact that the case was defamation but he distinguishes his case to the appellant argument that his case where defamation act occurred on WhatsApp group does not fall under registered media in his understanding on the applicability on the Media Service Act (Defamation Proceedings) Rules. it only applicable to the registered media or journalist and not WhatsApp group. I have taken time to go through the Act which is The Media Service Act, Act No. 15 of 2016 and its Rules, that is, Media Services (Defamation Proceedings) Rules 2019, GN No. 108 published on 1/2/2019. The Media Service Act, Part V provides for defamation. In its analysis, the trial court, at page 9 of the typed judgment, made reference to section 36 (1) of the Media Services Act, when defining defamation in a print media which is found under part V of the Media Service Act. 6 Looking at the Media Services (Defamation) Rules, rule 2 it provides that: "These Rules shall apply to all proceedings under Part V of the Act for the purpose of facilitating timely and expeditious determination of cases" From the above cited rule which provides for the application of the rules, the word used is "shall" which according to section 53(2) of the Interpretation of Laws Act means mandatory and not directory. Now Rule 4(1) provides that: ''Legalproceedings under Part Vof the Act shall be instituted by way of a petition in the Form DP set out in the Scnedu'e" The rule also used the word 'shall' to insist that whenever a party files application for defamation under Part V of the Media Service Act must file it by way of Petition. Having said that as the respondent counsel admitted not to abide with this rule therefore his suit was not properly before the court. One may argue that this issue has to be raised earlier and not this time when the matter has already been determined. To me this is point of law and can be raised at any stage even before judgment for the suit and can be raised even on appeal when discovered so as to have a proper record of the court. Having found that the suit was improperly filed before the trial court, I am satisfied that the proceedings and consequent orders were a nullity and I so declare. 7 In consequence, I allow the appeal with costs and nullify the decision of the trial court and set it aside. The respondent is at liberty to file a proper fresh suit according to the dictates of the law. Since this ground being a point of law determines the whole appeal, I see no need of discussing the remaining grounds of appeal. It is so ordered. W.P. Dyansobera JUDGE 16.10.2024 This judgment is delivered under my hand and the seal of this Court on this 16th day of October, 2024 in the presence of the appellant in person and Mr. Hashim Mziray, learned counsel for the respondent. W.P. Dyansobera JUDGE 8