john binamu vs moses matola 1985 tzhc 45 1 december 1985

IN TH L H IG H CO U R T OF TANZajMIa aT M T W a .vA (PC) C I V I L n F P l a L H O o 28 OF 1984 I'USa SI DC C I V I L At f E A L NO. 11/82 OkIGIN/iL M C H a URU P R I M A R Y C O U R T C I V I L C a SE NOc 1 OF 1982 JOHN B I N h M J c ooo.oooooooo A P P E L L A N T (Original Defendant) versus M O S E S MATOLAo o . o o o o o o . R E S P ON DE NT (Original Prosecutor)

J U D G M E N T KY a NDO, J. The appellant brought an action for damages for defemation against the respondent in the Primary Court of Mchauru, Masasi District. He alleged that the respondent had said he was a thief and had stolen public money belonging to Luatala village and also had left with the village safe keys without authority from the village leadership- The respondent resisted the claim,, The Primary Court unanimously found for the appellant and awarded him shs.500/= as damages. The respondent was dissatisfied. He appealed to the District Court. The District Court (K.A. Kulolela- DM) allowed the appeal of the respondent and set aside the judgment af the Primary Court. The appellant is now appealing against tl;e decision of the District Court. Looking through the judgment of the learned District Magistrate, it reads, in part, more like a political speech than a .judicial decision. Witness the following passage which I reproduce from tjriQ judgment;- ‘ •'Baada ya kusoma* kumbukumbu ya kila upande, inaonyesha dhahiri kabisa kuwa daawa hili halikuendeshwa ipas^vyo chini ya sheria. Hakimu alisahau kuwa kufuatia misingi ya sheria t-uliyonsiyo nchini kila raia ni askari kwa kuliada usalama wa nchi yake, usalama raia wenzake na wake, kadhalika na mali zao. Hivyo Hakimu alifanya kosa kwa kumkubalia mdai fidia ya shs„500/= aividai kuwa lugha iliyotumiwa ilikuwa ya kashfcio Hi.i

inaonyesha kuwa viongozi wa aina hii wana nia ya kutisha raia ili wasijuwe lipi wanalolifanya kinyume cha matakwa ya nchi. Licha ya kupeleka lalamiko kwa Katibu Tarafa, wanakijiji wangekuwa na haki ya kupeleka lalamiko Polisi na mjibu rufaa angepaswa ■ t akamatwe na aisaidie Police Jsabla.-.yu safe -hilo kufunguliwa. Kufuatia utaratibu, safe ni mali, ambayo masharti yake ya kutunzia ni lazima yazingatiwe. toacha ya raia, hata Chama na Sorikali kamwe havikubali mtunza safe aweze kuondoka tu bila ya idhini na akaenda kukaa mahali zaidi ya rniezi miwili na hata chini ya hapo au zaidi. Ikiwa atafanya hivyo, ni dhahiri tuhuma ya Wizi itajitokeza, na itakuwa sio janbo la msingi kisheria kuwakubali watu wa aina hii ambao wanafanya makosa, na badala ya kuwataka radhi w a l i o w a k o s e a , kinyume chake anadai kuwa amevunjiwa heshima au amefanyiwa kashfa. Hii ni kashfa ya kujitakia na raia au wananchi kwa ujumla wanayo haki kumshuku mtu ycyote au mtumishi yeyote iwapo utendaji wa kc;zi unaleta hofu kubwa kwa wanakijiji kitu cha msingi tu ni kwamba mtumishi akishukiwa juu ya utendaji wake kuwa ni mbaya* lazima milalamiko yapelekwe kwenye vikac? au ngazi za uongczi vinavyohusika/unaohusijca, kinyume chake t;i majungu. Mrufani alilalamika kwenye ngar.i ^.inazofaa kyanzia tawini, Katibu Kata hadi Tarafa hiv^o sioni lipi alikosea- Hivyo hukumu n a a m r i ya Mahakama ya Mwanzo nazifuta

na kuamuru fc$wa mjibu rufaani ?ilipe gharama ya kesi ya awali na hii ya rufani". The appellant does not appear to be a political novice* He 3-3, on the contrary, a master of politics too* He impugns the above passage from the judgment of thellearned district magistrate in terms matching in force and substance with those in which the District Magistrate expressed himself. I reproduce below the relevant paragraphs from his memorandum of appeal ”6. Hakimu wa Wilaya katika uamuzi wake anasema kila raia ni mlinzi na lazima alinde mali. Je kuniita mimi mwizi na hali sikuiba ndiyo ulinzi wenyewe unaotakiwa kila raia afanye? 8a Mimi nilikabidhiwa furtquS za safe na Halmashauri ya kijiji nikiwa kiongozi* Je ndiyo nia ya Serikali na Chama Viongozi waitwe wezi kwa sababu tu kila raia ni askari na hali viongozi hao hawakuiba?

11. Hakimu wa Wilaya anadai mrufani alikuwa anatetea kijiji chake. Mbona basi wanakijiji hawakunitolea ushahidi huo au utfttezi wa kijiji ameupata huko Wilayani? 120 Iwapo Ofisi ya Kijiji, Halmashauri ya vijiji na Mkutano uliohudhuriwa na wanakijiji, Katibu K ata na Kato-bu Tarafa wote waliona mrufaani alitumia kashfa kwangu, je yeye Hakimu wa Wilaya ana kijiji chake gani ambacho mrufaani huyu anakitetea kwa kuniita mimi mwizi na hali sikuiba? 13« Mimi huyu huyo niliyetaka kuitwa mwizi tena naarabiwa nilipe gharama kwa huyo huyo ali yen ikashifu, Je Mahakama inapendelea viongozi watukanwe bila sababu ati tu kwa sababu kila raia ni askari? ► / im o . ./4 Whatever the case, the crucial issues ■int.fcheCc^se Are'-) (i) whether tne respondent did make the allegation that the appellant was a thief; (ii) whether if he did make thiss allegation, it was a false allegation in fact, and (iii) whether, if it was made and was false, it amounted to defemation. The background to the matter is that both the parties are residents of Luatala village in Masasi District. The respondent is Chairman of the shop committee of the village shop. Sometime in 1981, the appellant left the village and travelled to LiwalCo He left with the key to the village safe. Because of this he (the respondent) said the village shop could not operate. He strated to make inquiries as to how the appellant left with the

village safe keys. He inquired from the village chairman; he (the Village Chairman) informed him that the key was with the appellant who had travelled to Liwale. He asked him (the Village Chairman) to convene a meeting of the Village Government so that the matter could be discussed. The chairman did not convene the meeting. The respondent therefore reported the matter to the Ward Secretary. The Ward Secretary convened a meeting eontteting of the leadership only and not of the entire villagers. The respondent said he opposed this. The results of the meeting held by the Ward Secretary were not revealed* He (the respondent) therefore took the matter to the Divisional Secretary., The latter convened a meeting of the entire village - On 22.10.81. Apparently, the Divisional Secretary said that the appellant had not done anything wrong in leaving with the key. In his evidence in the Primary Court the appellant stated that the meeting convened by the Divisional Secretary was to discuss the allegation by the respondent that he (the appellant) had taken keys for the village safe without authority or the knowledge of anyone in the village. He (the respondent) had allegedly also alleged that the appellant had taken 281/=, the property of the village and that he had stolen that money to buy meat at Liwale. He (the appellant) sciid after the Divisional Secretary heard the explanation as to

how the appellant had left with the keys, he concluded that nothing wrong hau been done by him. The explanation lie gave was that he had to leave with the keys because there was no one with whom to leave them at the village. Concerning the 281/=, the .appellant stated that it was established that no funds of the village had disappeared. The appellant then -old the Primary Court as follows ”Hata hivyo mdaiwa wala hakuridhika na jibu hilo la Katibu Tarafa ambalo alilipata toka Ofisi ya Tawi la Luatala naye mdaiwa akaendelea tu kuniambia kuwa ni mwizi kwani sina uwezo wa kupata mbaazi nyingi toka Mangaka na kuwauzia wanakijiji ila kwa kuiba tu toka pale kijijini. Hapo Katibu Tarafa aliamua kuondok-i. Kwa hiyo yote niliamua kulalamika Mahakamani dhidi ya huyu mlalamikiwa kwa kosa hili la kunivunjia hcshima'-' • The respondent said in his evidence that he did not agree with the Divisional Secretary's conclusion that appellant was not wrong in taking the keys with him to Liwale. At the hearing of their appeal, fafei..(the r e s p o n d e n t )contended that he did not say the appellant was a thief. He said his concern was about the keys for the village safe and that he only made inquiries about them ~ from the Village. Chairman up to the Divisional SacreLaryo Considering the case as whole, there is no doubt the respondent did make the allegation that the appellant was a thief* He

seems to have been harbouring these suspicion# against the appellant for a long time. Part of his own evidence runs as follows uHapo niliamua kulalamika jambo hili mbele ya Katibu Tarafa ambaye alikuwa na mkutano na wanachama wote tarehe 22.10.81 kule Luatala. Kabla ya hiyo tarehe 22.10.81 aliponihoji Katibu Tarafa kuhusu shaka niliyokuwa nayo kwa mdai kwa jambo la ufunguo nilimjibu kwamba mdai amekuwa anafanya biashara kila anaporudi safari hali ambayo ni kinyume mwenendo wake, Kwani tangu amehamia hapa kijijini hakuwa na uwezo huo. Baada ya kukabidhiwa funguo za safe ndipo kila anaporudi ndio anakuwa na shughuli za kibiashara kinyume cha uwezo wake. Kwa hiyo ninahofu kwamba anaiba ama anatumia fedha ya kijiji kwa biashara hiyo y a ke M (emphasis supplied. From this passage, it is clear that the respondent suspected the appellant of stealing village funds and he made open his suspicions to the Divisional Secretary. As a result the Divisional Secretary had to convene the meeting of 22.10.81,, As it turned out, the suspicions entertained by the respondent could not be substantiated. They were,false. No village funds had been stolen - even the 281/=. The respondent's allegations against the appellant were accordingly false. Finally, if they were false as held was the respondent justified to make them? Certainly he was not. Over and above all, he seems to have been waging a

personal vendetta against the appellant. Inspite of having reported the key matter to the village chairman, he was dissatisfied with what he believed to be inaction on the part of this leader. He went on to accuse the respondent to the Ward Secretary, up to the Divisional Secreta^o After he had reported it to the Village Chairman, why did/not satisfy himself with that step? even, as shown, the finding of the Divisional Secretary did not satisfy him. The respondent clearly was after the appellant. This establishes malice. He made the allegation th^t the appellant had stolen the village keys and money falsely and maliciously® He clearly defamed the appellant as an allegation of the type he made is obviously defamatory. For these reasons, the Primary Court was correct in finding him liable and condemning him to damages and costs of the suit„ The learned District Magistrate's interference with chat decision was unjustified. The respondent was not acting on behalf of the village; as the appellant has stated in the memorandum of appeal, the villagers did not back him up« He clearly had his own personal feelings against the appellant and he was not acting as an "askari of mali ya umma" as held by the learned District Magistrate. The appeal by the appellant is, for the above reasons, allowed with costs in this court and in the two courts below* Order accordingly 1 L.A.A. KXA1MDU

JUDGE