19851120 TZHC Mbeya

MW iiiIF 1 '• :L1L C .2 J1? L°i_jLa jO the decision of the strict o:r - .... a in v. JAiJO.i3 TIitUTH .......,.., . versu DAIIsJA. L/G KJ4LOiI).. . J •J• i) G .i 1. -2 J. This is E.. second appeal oriL4natir from hbeya Urban Primary Court; where thp appellant one Jacob imothy had beei unsucoessfu-ly sued by the Respondent one Daina d/o Kalobo for damaes for having defamed:- her by publil.y representirg her as a witchJ3n appeal to the Distridt Court jiden3ent'was entered in favoi.r of the iespondent, the said Daina d/c Kalobo, ihereby the appellant together with his wife were each ordered to pay the ROsportdent o.a ages amoitnting to sh.l.)OO/= it is 'aainct ueh &ecisiøn of the Diatrict Cotrt that this appeal- has been preferred. . The facts -that .led to the Iritttut.on - of defanation proceedings by the Respondent a47,S-ast the appellant are ao follows. The appelist and t1IO ree pondent, ha4 tr ...4ie, 1iveias clos, nei1jboiu at iabMir4. .area wIthix the .'-unieLality of )4aya. Smetime earjy. 975 1 the appellanVz, e1i4ren sell sick. ....... That movi t&e apj;e2.at and hi wife to. -nzspeet -the Respondent to - have been the OU' .;bo had C8*d the. : ekiee. by wLttthcraft. Cone- quentl.y on a muber of occasiora the pea.ee of the respondent was distuxWd by the appellant's conduct of tkirov.ng stones at the R pon.d.ent s house in the evoning, while calling the Respondent - a witch.

Thi \s led the Respondent to complain to the District 3arty 3ecretary/Area Commissioner, for the District. It ias bet -,teen oraary and ..pril 1975 that such *Qmplaint 'was atteided. to.Ce of the Area ComEiissionerswho handle the .4espondent's complaint is one .izekiel thamba who was called, and teti,fied bf ore the i?rimary Court on this issue. ccoling to his evidence ,. following the complaint by the tespondent, h e summc-ned the appellant - and his wife before him and in the presence of the Respondent they 0 • 0 - - .- - - - -, . - 0 , •0. A_ - admitted to have been calling the Respondent as a witch, though denying to have throsn stones at her house, ii?hev also admitted to have been the ones who had rocured a traditional m.dicineman from $umbawanga ho on arrival at hbeya called at the Respondent's home in search of iristrumeits' of witch craft, wiaile po±Lting to the general public that she was a iUet' Labr on the dar and that was sometime- - in April 1975, . the Respondent was paraded in public to a place at the riverside where he picked an animal horriand claimed that the same had coatained wItch craft nedicine; be1nging to the Respondent. That attracted jeering at the Respondent by mernbersf the public. It is then when .eveyhing was over that the Respondent -pned. defamat±ön proceedings in the Primary Qourt which she lost upon evidence by the traditional nedic.j.neman

one .Ljlias s/c kafai that when approached by the appellant he was able t. identify. the Respondent as the perbon who had bewitched appellantt s chiLiren and that 1a;er a police officer went to collect him 'rom his home and took him to .L1eya, . thee he was able to call at the Respondent's home while iccor.,apanied by a policeman and there sought and did- in fact look for intruments of witchcraft in the Respondent's 4Quse, while calling her ijat she was a witch. • It is in reliance on the testImony of the traiticnal medicineman, the said alias kalafali, that the appellant was. able to euceed before the Primary Court, and later maintained before both the District Court that he at no time def .. the Respondent by cal.Llnk . her . -. as a witch. - . ..... . Such..contention by the appellant vas however ritly rejected the lower appellate cOurt, and neither this court is prepared to accept such an arpment. bor it is clearly against the weight of evid as addcd before the lower trial court, . .. . tccording to the record of the lower trial coart it is an establisW fact as testified apoh by one James .wabulambo and one Rzekiel hhamb, then the irea Commissioner for the District, that when thappelant and his wife appeared before the said area Commiseloher upon complaint by the Respondent, they admitbedto have been clling the Bpondent.. a ritch, after which they proceeded to urnbawanga to

procure the - 3- traditional medicineman in order, presunablyto have an authentic pronounce chent that the xespondent visaitch, whiqhwas.in fact done, t•. the great ridicule and molestation of the respondent. There can be no doubt therefore that the appellant did procure the traditional 1 medicineman to anounce that the Respondant .;as a \litch and get her disarmed of her alleged charis. dhoh it is the traditional med.icineman who, on getting at Lbey .iiciality actually and publicly nientioned the respondent a.o, the witch and sout to cleause her, he could not have travelled to lbeya and deal with the Respondent save through the recuest and expense f the appellant. Thus on this alone the appellant, must be taken to ha7e been not merely a passive but clearly an active party to ;:;ch &ct of dofation 00mp1ajned of, as joint tort-feaso s. .spart from such participation by the procurement of the said tra- - ditional medIeineman, the appellant was still rightly held liable in dama€es or defaLihs Respon4snt 'n his om ri&t For as pointed jut earlier, he himself 4n admitted to have been ptblicly calling the Eespondent as a witch when suswoned before the bre a Corxqisaioner, one Lzekiel lihamba and wtnesed by ene Jaises Lwabaluibo. In the circmtanoee being satified that there was no justification, for the appellant in publicly calling the ffpondant as a pitch and that such statement was clearly d.efanatory, to the iespondent as It not only tended to but actually lowered her esteen in the estimation of the right 'thinking peopie of her c'mmunity, this appeal cannot hit be dismied with costs. Judgeent having been reserved, i is heb.y so do)iverd i/YR r' 20/11/85 Ii.IKJ .t 1beya. JJDG± ¶ 4