itv independent television limited and 4 others vs devota kisoka 2023 tzhc 16888 28 april 2023

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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR-ES-SALAAM DISTRICT REGISTRY) AT DAR-ES-SALAAM CIVIL APPEAL NO. 72 OF 2022 lTV - INDEPENDENT TELEVISION LIMITED II 1st APPELLANT EAST AFRICA TELEVISION 1............................. 2 APPELLANT nd THE EDITOR lTV - INDEPENDENT TELEVISION LIMITED 3rd APPELLANT THE EDITOR EAST AFRICA TELEVISION 1 III 4th APPELLANT JOYCE KIRIA ......•....•...........................•.............................•... 5th APPELLANT

VERSUS [)E:"()1r~ t(I!;()~ ••••••••••••••••••••••••••••• ,••••••••••••••• FlJ:!iJt()~[)IE~1r ,••••••••••••••••••••••• (Appeal from the Judgment and Decree of the Resident Magistrates' Court of Dar-es- Salaam at Kisutu) (R.G. Tarimo, PRM) Dated 27th day of April 2022 In (Civil Case No. 116 of 2017)

JUDGMENT Date 23/03 & 28/04/2023 NKWABI, l.: The respondent successfully sued, the appellants including another who did not defend the suit and has not appealed the decree, for defamation arising from an interview that was aired (published) on the 1st and 2nd appellants. The interview caused an extensive discussion on various media houses. As a result of the defamatory statements, the respondent suffered Healthwise, . mentally and careerwise. The trial court was satisfied that the respondent 1 had proved her case to the required standard. It rejected special damages but awarded the respondent general damages at T.shs 75,000,000/=, it issued a permanent injunction thereof to the appellants and costs were ordered to be borne by the appellants. Unhappy with the decision of the trial court, the appellant filed in this Court a petition of appeal which contained 13 grounds of appeal. In submission however, the counsel for the appellants narrowed the grounds of appeal to three issues as follows: 1. Whether the respondent pleaded the verbatim words alleged to be defamatory of her.

2. Whether the respondent proved her case to the standard required.

3. Depending on the answer to issue (b) above what reliefs were and are the parties entitled to. The appeal was argued by way of written submissions. Mr. Michael Ngalo, learned counsel for the appellants argued the appeal for the appellants. The submission resisting the appeal was prepared by Mr. Kelvin Kidifu, learned counsel. 2 .__ .,_ -- .,' ------ -----------, On that first issue in this appeal, for the appellant, it was submitted that the respondent was required to plead the actual defamatory words in her plaint as required by Fatma Salmin v. Dr. Maua Daftari, Civil Case No. 34 of 2008 HC (unreported) Mwarija J., as he then was, where he held that: ''From the foregoing reasons, I find that the plaintiff did not comply with the legal requirement of setting out verbatim in her plaint the alleged offensive or defamatory words on which she founds her claim from the publications in the newspaper, copies of which have been annexed to the plaint" Another case thatwas cited is Hamza Byarushengo v. Fulgencia Manya It 4 Others, Civil Appeal No. 246 of 2018, CAT (unreported). It was contended that the words pleaded were that: (aJ ''Mlalamikaji ambaye ni Hakimu Mkazi Mkuu aendesha mashtaka kwa ushawishi. (b) Kwamba matokeo ya ushawishi hou yapelekea hakimu Mkazi huyo kutoa amri ya mtoto katika shauri hila kuwa chini ya ulinzi wa baba yake. " 3 It is argued that the question is whether

the words quoted were verbatim aired or broadcasted by the appellants or not. By that submission made by the counsel for the appellants, it is clear that there were words quoted verbatim, the question that remains is whether those words quoted were proved to have been broadcasted by the appellants. Next, I consider the question whether the respondent proved her case to the standard required. It was argued in submission in chief that the respondent did not prove her case to the required standard because the respondent did not tender the CD she pleaded that she would tender in evidence and her witness PW2 said he was merely told by her colleagues students on the broadcasting. The appellants deny that the interview aired was defamatory of the respondent. It is submitted that exhibit P2 was a mere apology to the Court but did not admit the interview contained any defamatory words ' against the respondent. They called upon me to accord adverse inference against the failure of the respondent to tender the CD citing the case of Byarushengo (supra) where it was stated at pages 26 and 27 that: 4 ''In the circumstances, the sound recording of the said libelous allegations was material evidence and failure to produce it entitled the trial court draw an inference adverse to the appellants' case. See Azizi Abdalah v. Republic [1991J TLR 71. Probably, the video sound recording could have

possibly remedied what was missing in the blank dots. Without exact words complained of, the substance and effect of the alleged defamatory word is not enough to prove defamation and as such the respondents were not better placed to make the appropriate defences. See Nkalubo v. Kibirike (supra) . ... the Appellant did not discharge the legal burden on his claim of being defamed and thus failed to prove his case on the balance of probabilities. " In reply submission, the counsel for the respondent contended that the burden of prove in civil suits is on the balance of probabilities. The appellants issued an apology which was copied to the respondent (exhibit P. 2.). It was added that the act of apologizing entails that the appellants admit to have 5 aired news in which the respondent who is a magistrate is holding senior post was wrongly portrayed to have made a decision under influence and failed to bring the 5th respondent who actual unlawful interviewed the plaintiff to appear and testify. It was called upon this Court to draw a negative inference for failure to appear and testify in these sensitive allegations against the appellants. The counsel for the respondent tried to distinguish the cited cases by the counsel for the appellants as in those two decisions the defendants disputed to have aired defamatory statement and did not offer any apology. That, in exhibit P2 the

defendants did acknowledge to have done wrong. In rejoinder submission, it was denied that the appellants admitted that the interview contained words that the respondent alleges to be defamatory to her. It was reiterated that the respondent did not prove her case. I agree with the counsel for the appellants that exhibit P.2 did not admit to have defamed the respondent. The apology was in respect of the violation of airing interview in a matter entertained by a Juvenile Court whereby that airing was not procedural. I quote exhibit P. 2 for clarity: 6 " Kwa kutambua umuhimu wa mahakama kuwa huru katika usikilizwaji wa mashauri mbalimbali na utoaji wa maamuzi ya haki tunakiri kuwa haikuwa sahihi kwa flY kurusha mahojiano kati ya mwandishi na Hakimu kunusu maamuzi aliyofanya kwa nafasi yake kama afisa wa Mahakama. Tunatambua na kukiri pia kwamba habari iliyohusu kesi iliyo mahakamani inahusu mtoto na haikupaswakurushwa bila kibali cha Mahakamayako.... " In the submissions, the counsel for the respondent does not indicate the respondent issued a notice to produce to the appellants the piece of evidence (CD or DVD) that was in possession of the appellants as adverse parties. The respondent showed would tender the CD but did not. In the Circumstances, the trial court ought to have accorded an adverse inference just as per Byarushengo's decision (supra). I therefore, accept the

submission of the counsel for the appellants that the respondent failed to prove the defamatory words. The 2nd issue is answered in the negative. As to what reliefs the parties are entitled to, based on the discussion above, the appeal is allowed. I quash the judgment and set aside the decree of the I trial court. I order that each party to bear their own costs because, the 7 appellants apologized not only to the judiciary but also to the respondent on the inappropriate broadcasting of the interview, else they would have not issued a copy to the respondent. It is so ordered. '( i ~. -: ·f .1': .. . 8