NA TZCA Mbeya

sv IN 1:riE COUHT OF APPEAL OF TAI~z:rnv. AT MBEYA --- (CORAM: RAM.ADI-L-l.N! J .. ...,_,_......,;,,.:_.-. CIVIL APPEAL N0.59 OF 2000 B:C'l'i,'l'BEN IDDA MivAJLlL!riDILE. • • • • AFFl.LLANT Al"\iD 1. N.B.C. HOLDING CORfOB.A'I'ION~ 2. SAI•l SiUJEN MWAKALINDILE f • • HEBPON:OENTS (Appeal from the judgement of the High Court of Tanza.J1ia at Mbeya) dated the 17th day of Dece1nber, 1999 in J U D G r,: E N T ..-~-·--....-----·· ·-----·- .... l!._UBUVA t J. A.!.: In High Court Civil Case No. 6 of 1997, the appellant, Iddah Mwakalindile, had filed a suit against the fir3t reGpondent, NBC Holding Corporation and ~he second respondent, Sam Baijen Mwakalindile, her husband. Her case was that through the media of a local Kiswahili newspaper, (Nipashe of 26.3.1997) she became aware that the house on Plot No. 22C Block 1 Usafwa Road, Mbeya, was one of the houses due for aucti~ing. Th.is houGe belongs to her and the husband, the second . respendent as their matrimonial property. Tl:1e first respondent had authorised N/S I·'iabama Auction Hart to auction th:e houGe which had been mortgaged by the second respondent. 'l'he mortgage was in respect of a loan raised by the second respondent frcrn t):ie then National Bank of Commerce. Neither was she a,J~e of the loan nor did she consent to the house being mortga;;ed. "lt w~s a fa.mil;y hous.a in whic'.:1 both she 1 •.• /2 -....,.:._ ...,...____ -.................. 3 Tho a.ppolln.nt I s claim fol" dofor.iation was ossontially based on the publication of' the probe l.'Gport to tho bodies of persons 0th.or than that which had ordol.'Gd or diNctod such :probo. And th.a baeis for his complaint against wrongful termination was that he was giwn no opportunity to bo heard by tho body vrhioh tom;inatod hi~ ompl&J'!llo.nt, Tho trial judgo dismissed tho ap:p0lla.nt1 s claim for d.ofana;t.ion o.n tho ground that tho first respondent had th~ dofonoo of qi..wifiod priViloge. Ho disraissod tho claim :for w:t'on&ful torcination on tho ground that such termination wa.s justified in tho light of' the appellant• s proved or admitted miseonduots .. At tho hearing of this appeol tho appella."li. was .;ro:proeentad by Mr. Lukwa.ro while :Mr. Mucc.a.d.a.c appoa.rcd for tho rospondonts. Mr. Lukwaro filod a total of eight grounds of appeal ohaJ.longing tho dismissal of his cliontts suit by tho High Court and tho f~'U.l'O by that Court to award him costs af'tor disnissing t.bo 0,0\ll'ltoD-Claitl by tho sooond :t'Ospondont. '!'ho lea.mod judge found that tho report by the probe t.ourn did contain statcnonts which woro defamatory of tho appollaxrt. m1on dealing with that issuo ho said inter ru.ia.r "Th.ore is no doubt that somo of tJ:,..o publication is dofamatory • Mat tors liko adul tory inputa,- tions a.nd froud allQgations aro certainly dafo.matory'' • We are satisfied that this finding was quite justified. There was a.mple ovidonco to support it. IIowovor, ho misd.iroctod hir.1solf by saying that tho probo team submitted its report to tho gonoro.l oou....-1.cil of JUWAT.A,. R>r, thoro vas abundant ovi.dcnoo of tho appollant and "th.a 3 ., Tho appollnnt 1 s claim for dofor.iation was 03sentially based on the publication of' tho probe report to tho bodies of persons other tho.n that which had ordered or directed such :probe• And "bho ba.eie for his complaint against wrongful termination was that he was g.i.wn no opportunity to be heard by too body vrhioh tom:ina:tod his. om:pla_ymQ.nt, The triaJ. jud.go dismissed tho ap:pellantt s claim for defamation on tho ground that tho :first :respondent had tho dofonoo of qualified privilege. Ho disraissod tho claim for wrongful torc:iination on tll<l g;-aund that such termination wa.s justified in tho light of tho a.p:pollantc s prowd or admitted misoond.uots. At tho hoo.ring of this appeal tho a1,pella.nt was roproeented by Mr. L\lkwaro while l-I:r. Mucaailao appoa.:rcd for the respondents. Mr. Lukw-a.ro filod a total of eight grounds of appeaJ. ohallonging tho dismissal of his client's suit by tho High Court and tho fa.t!,uro by that Court ta awa.rd him ooste after disnissing tho CO\,mtoD-Cla.im by tho sooond respondent. Tho loarnod judg-e found that tho report by tba probo torun did contain statcnonts which wero defamatory of tho o.ppolla.nt.. i'lhen dealing with thn.t issue ho an.id inter clia.r "Tb.ore is no doubt that some of the publication is defamatory• Mat tors like adul tory ioputar- tions a.nd f:ro.ud aJ.lQga.tions aro certainly j dafw::in.to:ey-11 • ! t : We a.re satisfied that this finding was quito justified. There was a.mplo evidence to support it. IIowover, ho misdiroctod hirasolf by Sccying that tho probe team submitted its report to the general council of JUWAT.A.. Pbr, thoro was ollunda.ut ovidonoo of tho appollant ro1d th.a