CIVIL APPEAL NO 320 OF 2022 THE MANAGING DIRECTOR KENYA COMMERCIAL BANK T LIMITED ALBERT ODONGO VS

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA f CO RAM: JUMA. C.J.. WAMBALL J.A. And MURUKEJ.A.^ CIVIL APPEAL NO. 320 OF 2022 THE MANAGING DIRECTOR, KENYA COMMERCIAL BANK(T) LIMITED................................... 1st APPELLANT ALBERT ODONGO....................................................................... 2nd APPELLANT VERSUS SHADRACK J. NDEGE............................. ..................................... RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania at Mwanza) (Manvanda, J.) dated 16th day of March, 2021 in Civil Appeal No. 20 of 2008 JUDGMENT OF THE COURT 18th & 28th February, 2025 JUMA, C.J.: A letter, exhibit PIV, which theemployer sent to an employee to show cause why the employershould not initiate disciplinary proceedings against him, precipitated a defamation suit that led to this second appeal. In essence, thisappeal concerns the scope of employers' liability in defamation over statements arising from disciplinary proceedings. On 1 March 2005, Albert Odongo (the second appellant and a Relationship Manager at the Mwanza Branch of Kenya Commercial Bank (T) Limited) wrote a letter (exhibit PIV) to the respondent Shadrack Ndege (a then employee of the Kenya Commercial Bank (T) Limited). The letter asked the respondent to show cause why the employer should not take disciplinary action against him for the reasons stated in that letter. The letter aggrieved the respondent, prompting him to institute a defamation suit (RM Civil Case No. 19 of 2005) in the Resident Magistrate's Court of Mwanza against the Managing Director, Kenya Commercial Bank (T) Limited (the first appellant) and Albert Odongo (the second appellant). The dispute has now been in court for twenty years. From the trial court in 2005, the dispute moved on to the High Court at Mwanza. The High Court at Mwanza delivered its decision on October 15, 2008. On the second appeal, the Court of Appeal quashed the High Court decision on May 11, 2020, and ordered the rehearing of the first appeal by a different Judge. High Court at Mwanza (Manyanda, J.) reheard the first appeal and delivered his decision on March 16, 2021, prompting this second appeal. Earlier, in the Resident Magistrate's Court of Mwanza where the defamation suit began, the respondent claimed that the second appellant, in his capacity as an employee of the first appellant, wrote a letter (exhibit PIV) alleging that he had fraudulently claimed money from his employer the Kenya Commercial Bank (the KCB) to pay for transfer of his personal effects while knowing that following his transfer from Mwanza to Arusha, the Bank did not directly pay him, instead, paid M/S Riziki Mbise (PW3) to transport his personal effects from Mwanza to Arusha. The respondent complained that the allegation of fraudulence against him did not only imply he committed a criminal offence and hence defamatory against him, but the second appellant also intended to curtail his career promotions or even minimize his prospects of getting another job. He accused the appellants of oppression when in a bid to recover the money they paid PW3, they tampered with his bank account to show that he lacked sufficient funds to withdraw from Automated Teller Machines (ATMs). The respondent further complained that as a young graduate banker, the defamatory letter imputing criminal offence injured his reputation and prospects for career advancement. 3 In his evidence to support his claim, the respondent (PW1) explained how he joined the KCB on 31/10/2000 as a bank clerk at the Mwanza Branch. After confirming him in the job, his employer (the KCB), on 27/12/2004, promoted him to Bank Supervisor and transferred him to Arusha. To facilitate his relocation to Arusha, the second appellant approved a quotation for transportation of his personal effects and a cheque for TZS 1,400,000/= authorizing PW3, a Transporter, to transport the respondent's luggage from Mwanza to Arusha. The respondent expressed his surprise when, after arriving in Arusha, the second appellant phoned him to inform him about prospects of engaging another transporter who was ready to transport his luggage for a lesser sum of TZS 900,000/= and asked him to refund the TZS 1,400,000/=. Later, the respondent received a fax message (exhibit PIV) accusing him of conspiring with PW3 to defraud the Bank. He complained that the second appellant faxed the letter openly without confidential cover. As a result, several people read the accusations that he defrauded the Bank. Apart from asking the trial court to issue a judgment in his favour, the respondent prayed for payment of TZS 99,800,000/= as general damages. To support his evidence, the respondent called two witnesses, Lita Henry (PW2) and the transporter (PW3). PW2 was a bank teller and cashier at the KCB Arusha branch when the respondent arrived in Arusha following his transfer from Mwanza. PW2 testified that she first heard office rumours and then saw the impugned letter from the second appellant circulating through a fax message that accused the respondent of fraud. In their joint written statement of defence before the trial court, the appellants refuted the respondent's claim that the appellants contracted PW3 to transport the respondent's personal effects from Mwanza to Arusha. It was the respondent, they averred, who arranged for the transporter to take his luggage and personal effects from Mwanza to Arusha. The appellants insisted that it was following the respondent's advice, they issued a cheque, which the respondent collected. The statement of defence accused the respondent of failing to use TZS 1,400,000/= to transport his personal effects and used it in a way his employer did not authorize. When the appellants pressed him further, the respondent collected a cheque from PW3 and personally handed it over to the KCB. The appellants disputed the allegation that they wrote a letter to oppress the respondent. The appellants claim that they did not accuse the respondent of fraud; instead, all they did was ask him to show the cause of why he failed to transport his personal effects as he had requested. They denied publishing any defamatory words, as the respondent claimed. The second appellant, Albert Odongo (DW1), was the only witness the appellants called at the trial court. He has known the respondent as one of the employees of the KCB at its Mwanza Branch, since the establishment of the branch in 2000. It was DW1 who recommended the promotion of the respondent for the third time, including the respondent's transfer on 2 February 2005 from Mwanza KCB to Arusha KCB. DW1 disclosed that it was the respondent who negotiated the final price of the quotation to transport his personal effects. DW1 testified that after the respondent had reported to his new station in Arusha on 10 February 2005, he (DW1) phoned the Human Resources Manager in Dar es Salaam to ask why there was a delayed settlement of the respondent's claims. DW1 expressed his surprise when the Human Resources Manager in Dar es Salaam informed him he did not approve the claims because the respondent had not transported any personal effects to Arusha to deserve payments. According to DW1, he asked the respondent to recover the money from PW3 because the Bank paid the money to transport luggage, which he did not transport. DW1 insisted the Memo (Exhibit PIV) did not raise the question of a cheaper transporter as the respondent claims. He asked the respondent to recover the Bank's money from PW3 and not to transport his goods until DW1 verifies the goods. DW1 denied disclosing the content of his letter (Exhibit PIV) to outsiders to amount to publication of defamation. He pointed out that there was no way PW2, a cashier and bank teller, could access and read the contents of a fax service. Only the branch manager and his secretary could read the fax message. According to DW1, just before he called the respondent's mobile phone on 24 February 2006, the respondent's bank account had more than TZS 2,000,000/=, but he withdrew all that sum immediately after his phone call. Because the transactions in the respondent's account were suspicious, the Bank decided to restrict transactions in that account to allow the Bank to recover the money it paid PW3. On 25 March 2008, the learned trial magistrate entered a judgment in favour of the respondent at TZS 80,000,000/= general damages. The trial magistrate declared the impugned letter (exhibit PIV) malicious, unlawful and hence defamatory of the respondent. The decision of the trial court aggrieved the appellants. They filed a Memorandum of Appeal to the High Court at Mwanza containing fourteen grounds of appeal. The grounds of appeal raised issues such as whether the trial court was correct in declaring the letter (exhibit PIV) unlawful, malicious, and defamatory of the respondent. The grounds of appeal also raised the question whether the appellants had justification or privilege for the publication of the letter. The first appellate High Court (Manyanda, J.) dismissed the appellants' appeal as lacking merit. He observed that in order a statement to be defamatory, it must contain untrue facts directed towards a defamed person and made known to a third party to lower the personality and status of that person in society. Concerning proof of the tort of defamation, he determined that the contents of the impugned letter were not truthful in material facts to justify the second appellant to write the letter requiring the respondent to show cause or to claim that the respondent wanted to defraud the Bank of TZS 1,400,000/=. Insisting that the AMOS JONATHAN V. J.S. MASUKA & OTHERS [1983] TLR 201 case be inapplicable, the learned judge described exhibit PIV as unfounded allegations by the employer (the appellants) designed to defame employees. The first appellate judge also cited the case of PETER NG'HOMANGO V GERSON MWANGWA & ANOTHER, CIVIL APPEAL NO. 10 OF 1998 (unreported), to support his conclusion that the letter was false and hence defamatory of the respondent. He also concluded that the respondent proved the essential element of publication. He stated: "A ll in all, when put on a weighing machine, the evidence o f the Respondent is heavier revealing that there was publication as the defam atory inform ation leaked to PW2, a third party an act which constitutes a tortious wrong term ed as defam ation." Concerning the general damages, the first appellate judge stated that he had to strike a balance by considering the depreciation of the shillings and inflation since 2008. He found no reason to interfere with general damages of TZS 80,000,000/=, which the trial court had awarded the respondent in 2008. The appellants, aggrieved by the High Court's decision to dismiss their appeal, filed this appeal to this Court. In their memorandum of appeal, the appellants filed 23 grounds of appeal to ask this Court for an order to set aside the decision of the first appellate High Court and dismiss the Respondent's case with costs. We produce the 23 grounds of appeal verbatim for ease of reference. 1. That, having found that the 1" Appellant is not liable for the to rt o f defam ation, the Honourable High Court Judge erred in law in raising the issue o f vicarious lia b ility suo motu without calling the parties to address the Court on whether the conducts o f the employees o f Kenya Com m ercial Bank (T) Lim ited ju stify the im position o f vicarious liability. 2. The Honourable High Court Judge erred in law by holding that the 1st Appellant is vicariously liable for the torts com m itted by the 2nd Appellant. A t the same time, the parties neither pleaded nor canvassed the issue o f vicarious liability. 3. That the Honourable High Court Judge erred In law in holding that the 1st Appellant is vicariously liable for the tort com m itted by the 2nd Appellant w hilst the 1st and 2nd Appellant were co-em ployees a t Kenya Com m ercial Bank (T) Lim ited. 4. That the Honourable High Court Judge erred in law and fact in holding that the 2nd Appellant is liable for the tort o f defam ation withoutjustification. 5. That the Honourable High Court Judge erred in law and fact in holding that a letter dated 01/3/2005 - Exhibit PIV that intended to in itiate disciplinary proceedings by asking the Respondent to show cause why the appellants should not take disciplinary action against the Respondent was defam atory w hilst it was part of the investigation process against the Respondent. 6. That the Learned High Court Judge erred in law in relying heavily on the testim ony ofPW 2 in finding that the contents o f a letter dated 01/03/2005—Exhibit PIV were published. 7. That the Learned High Court Judge erred In law and fact for falling to observe that PW2 read the content o f a letter dated 01/03/2005-Exhibit PIV that was not addressed to her, and she read the same out o f her curiosity after hearing rum ours about the Respondent's m isconducts. 8. That the Learned High Court Judge erred in law and fact fo r failing to observe that even if a letter exhibit ii PIV was sent via fax, is an open tetter and like ly to be opened by em ployer or any other person or employee in the course o f h is or her employment and that would be the same as the said letter was delivered to the employer. 9. That, the Learned High Court Judge erred in law and fact for failing to observe that the Appellants cannot be liable fo r publication o f the content o f a letter dated 01/3/2005-Exhibit PIV based on the wrongful act o f PW2. 10. That, the Learned High Court Judge erred in law and fact for failing to observe that there was no publication since the said letter dated 01/3/2005— Exhibit PIV was read by PW2- a cashier and not secretary or Clerk o f Kenya Com m ercial Bank (T) Lim ited. 11. That, in alternative and without prejudice to the grounds 9 and 10 above, the Learned High Court Judge failed to observe that since the letter dated 01/3/2005- Exhibit PIV was an open letter and not confidential as found, then PW2 having read the same cannot amount to publication because she was qualified as an employee o f Kenya Com m ercial Bank (T) Lim ited to receive the letter Exhibit PIV hence privileged. 12. That, having held that the 1st Appellant is not liable for defam ation, the Honourable High Court Judge erred in law in holding that Kenya Com m ercial Bank (T) Lim ited is vicariously liable for the tort o f defam ation com m itted by the 2nd Appellant w hilst the said Kenya Com m ercial Bank (T) Lim ited was not made a party to the su it thus condemned unheard. 13. That, the Honourable High Court Judge erred in law in holding that suing the Managing D irector o f Kenya Com m ercial Bank (T) Lim ited is equally the same as suing Kenya Comm ercial Bank (T) Lim ited. 14. That, the Honourable High Court Judge erred in law and fact in holding that the Appellants had frozen the Respondent's Bank Account and dishonoured the Respondent's cheque contrary to the evidence on records, or Having found that Kenya Com m ercial Bank (T) Lim ited and Godfrey Joseph who were not made party to the su it had frozen the Respondent's Bank Account and dishonoured his cheque, the Honourable High Court Judge erred in law and fact to continue holding the Appellants liable. 15. That, the Honourable High Court Judge erred in law and fact for failure to observe that the Appellants were exercising their right to lien to recover the money from the supplier which was fraudulently obtained. 16. That, the Honourable High Court Judge erred in iaw and fact in awarding general damages without proof. 17. That, the Honourable High Court Judge erred in iaw and fact by taking into account irrelevant factors in assessing the general damages. 18. That, the Honourable High Court Judge erred in law and in fact in sustaining the excessive damages to the tune o f TZS. 80,000,000/-withoutjustification. 19. That, having found that the Respondent's term ination from employment on Ju ly 2005 was on a different basis and that defam ation was not intentional and no wide spread o f the publication hence low gravity, the Honourable High Court Judge erred in iaw and in fact to confirm the award o f TZS. 80,000,000 as general damages on the basis o f currency inflation hitting Tanzanian Shillings from 2008 to 2021 without proof o f gravity o f currency inflation. 20. That, the Honourable High Court Judge erred in iaw and in fact in holding that the Respondent was a stranger or not privy to the contract for transportation o f the Respondent's personal effects contrary to the evidence on record. 21. That, the Honourable High Court Judge erred in law and in fact for failure to observe that the Respondent was an agent o f Kenya Comm ercial Bank (T) 14 Lim ited when engaged into pre-contractual statem ents with PW3 and deceived Kenya Com m ercial Bank (T) Lim ited to enter into a fraudulent m isrepresented agreem ent thus it was ju stifiab le for the said Kenya Com m ercial Bank (T) Lim ited to rescind the said agreem ent and recover the amount paid from the Respondent and PW3. 22. That, the Honourable High Court Judge erred in law fo r failin g to properly analyse and evaluate the evidence on records and thereby arriving a t a wrong decision. 23. That, the Honourable High Court Judge erred in law fo r delivering judgm ent without notifying the parties or their advocates the date o f delivery o f the Judgment. At the hearing of this appeal on 18 February 2025, Mr. Deya Paul Outa, learned advocate for the respondent, informed us he had earlier, on 11 February 2025, filed a Notice of Preliminary Objection under the provisions of Rule 107 (1) of the Tanzania Court of Appeal Rules, 2009, as amended (the Rules). The objection moved us to strike out the appeal because the Notice of Appeal that initiated this appeal offends Rule 83 (6) of the Rules. He elaborated that the notice of appeal appearing on pages 469 and 470 of the record of appeal is defective because it shows 17 March 2021 as the date the High Court delivered its judgment instead of the correct date of 16 March 2021. Mr. Outa reinforced his position that we should strike out this appeal by referring us to our two decisions in ELIAS TIBENDELANA V. THE INSPECTOR GENERAL OF POLICE & THE ATTORNEY GENERAL (2013) TLR and CHINA RAILWAY JIANCHANG ENGINEERING VS CONTINENTAL SERVICES LIMITED (Civil Application No 187 of 2015) 2016 TZCA 791 (27 April 2016 TANZLII). In CHINA RAILWAY JIANCHANG ENGINEERING VS CONTINENTAL SERVICES LIMITED (supra), we dealt with an incorrect date appearing in the notice of appeal, where the High Court decision subject to an appeal was dated 8 April 2014. Still, the Notice of Appeal the appellant filed indicates 7 April 2014 as the date of the decision of the High Court. We agreed that the notice of appeal with a wrong date of delivery of the decision subject of an appeal to this Court offends Rule 83 (6) of the Rules, which specifically requires that such Notices should be substantially in conformity with Form ’D' of the first schedule to the Rules. We stated in CHINA RAILWAY JIANCHANG ENGINEERING VS CONTINENTAL SERVICES LIMITED (supra) that the correct date of the decision of the High Court subject to an appeal to this Court is one of the essential components that must be in the body of any notice of appeal appellants lodge in terms of Rule 83 (2) and (6) of the Rules. Learned advocate for the appellant, Mr. Libent Rwazo, opposed the preliminary objection. He urged us to invoke the Court's power under Rule 111 of the Rules and allow the appellant to amend the notice of appeal by putting 16 March 2021, the date the High Court Judge delivered his decision. Mr. Rwazo referred us to the appellant's written submissions, in which he recounted what led to an incorrect date on the appellant's notice of appeal. The appellants, he submitted, were misled by the date that appears in the hand-written proceedings of the first appellate court, which incorrectly showed 17 March 2021 as the date of delivery of the judgment. When the appellants later on received the typed copies of the record, it showed the correct date of 16 March 2021. Mr. Rwazo referred us to our decision in FINCA T. LTD VS WllDMAN MASIKA & OTHERS (Civil Appeal No. 173 of 2016) [2019] TZCA 94 (16 May 2019 TANZLII), which pronounces the current position of the Court when dealing with defects in the Notice of Appeal. He argued that an amendment to correct a date on the notice of appeal instead of striking out an appeal is consistent with the overriding objective principle, which in FINCA T. LTD VS WILDMAN MASIKA & OTHERS (supra) we described the amendment as enabling the Court to "determine the real question in controversy between parties." The defect in the notice of appeal which raised preliminary objection was for referring to the Court of Appeal as the "High Court of Appeal of Tanzania." We ordered a correction under Rule 111 of the Rules without striking out the notice of appeal; we said: "...the error is necessarily due to a typographical error which can be rectified by effecting amendment to the notice o f appeal under Rule 111 o f the Rules. We say so because apart from that error in the body o f the notice o f appeal, the rest o f the document, including the title o f the notice o f appeal, which indicates that the desire is to appeal to the Court o f Appeal o f Tanzania. Moreover, the notice o f appeal has been preferred under Rule 83(1) o f the Rules. This presupposes that the intention o f the appellant is to access the Court o fAppeal." After hearing from the two learned advocates on the preliminary point of objection revolving around the incorrect date of 17 March 2021 appearing in the body of the notice of appeal, the case of FINCA T. LTD VS WILDMAN MASIKA & OTHERS (supra) reflects our current position, which we shall stand by in our Ruling. We overrule the preliminary objection and correct the date appearing on the body of the notice of appeal to reflect 16 March 2021, when the first appellate Judge delivered his decision, and to be consistent with the memorandum and record of appeal. After disposing of the objection, we reverted to the submissions of the learned advocates on the grounds of appeal. Mr. Rwazo submitted on grounds 1, 2, 3, and 13, which he described as concerning the issue of law, whether the first appellate Judge raised the issue of vicarious liability suo motu without calling the parties to address him, which made Kenya Commercial Bank (T) Limited liable for the conduct of its employees. In his oral and written submissions, Mr. Rwazo complained that since the parties neither pleaded nor canvassed the issue of vicarious liability, the first appellate Judge denied the appellants and the respondent their right to a hearing on vicarious liability. Grounds 4 and 5 revolve around whether the defence of justification in defamation is available to the second appellant, who wrote a letter to initiate disciplinary proceedings and disciplinary investigations against the respondent, the letter the respondent claimed was defamatory. In his submissions, Mr. Rwazo insisted that the respondent did not prove the elements constituting the tort of defamation, which he identifies as whether the letter was defamatory and referred to the respondent; whether the letter was published to a person other than the respondent and caused damages to the respondent. The learned advocate for the appellant insisted that the letter was not defamatory, it merely asked the respondent to show cause why his employer should not take disciplinary action against him for fraudulently claiming TZS 1,400,000/= from the Kenya Commercial Bank. He also argued that the respondent failed to present evidence to prove how that letter lowered his reputation or exposed him to hatred or contempt. Mr. Rwazo moved on to submit in support of grounds 7, 8, 9, 10, and 11. He urged us to disagree with the conclusion the first appellate Judge reached that the letter that the second appellant sent by facsimile to the Respondent was defamatory, and its access by PW2 amounted to publication. The learned advocate for the appellant insisted that there was no publication of a defamatory statement when an unauthorized employee (PW2) read the contents of that letter during her work as a bank teller. Through ground number 12, the appellants want us to determine whether suing the Managing Director of Kenya Commercial Bank (T) Limited (the first appellant) is the same as suing the Kenya Commercial Bank (T) Limited, who was not a party to the suit before the trial court and first appeal to this Court. On ground 14, Mr. Rwazo argued that freezing the respondent's account and dishonouring his cheque was justifiable because the respondent assisted PW3 in getting a quotation and the money to transport luggage to Arusha, but PW3 did not honour the agreement. He also argued that none of the appellants froze the accounts and dishonoured the respondent's cheques; instead, the Kenya 21 Commercial Bank (T) Limited, who was not a party to the suit and later appealed, froze the account and dishonoured the respondent's cheque. Mr. Rwazo faulted the first appellate Judge for failing to find that the first appellant (The Managing Director of Kenya Commercial Bank (T) Limited, was only an agent of the Kenya Commercial Bank (T) Limited. The learned advocate for the appellant reiterated the appellants' grounds 21 and 22. The learned advocate faulted the first appellate Judge's conclusion that the impugned letter that the second appellant faxed to the respondent was defamatory simply because it accused the respondent of making misrepresentations and fraudulent claims in collusion with PW3, the transporter of his personal effects. On grounds 16, 17, 18, 19, and 20, Mr. Rwazo faulted the first appellate judge for awarding the Respondent general damages of TZS. 80,000,000/- without proof and based on irrelevant factors. He submitted that the first appellate judge's basing general damages on the loss of future employment was speculative and faulted the judge for factoring in inflation and currency depreciation when assessing general damages. In his written and oral submissions before us, Mr. Outa urged us to dismiss the appellants' grounds 1, 2, 3 and 13 on the issue of vicarious liability. He maintained that parties not only pleaded the issue of vicarious liability but also argued it before trial and the first appellate courts, and the Judge appropriately determined it. He referred us to the Plaint, where the respondent pleaded with the second appellant as an employee of the first appellant. He reminded that the trial and the first appellate courts rejected the appellants' attempt to brand themselves as employees of the Kenya Commercial Bank (T) Limited, which was not a party. In submissions to oppose grounds 4, 5, 6, 7, 9, and 10, Mr. Outa, for the respondent, reproduced the letter forming the basis of this appeal and highlighted areas where the second appellant, its author, shows malice and deliberate falsehoods and false accusations of fraudulence against the respondent which amount to defamation. He pointed at how the appellants dishonoured his cheque, froze his bank account, and forced him to be a party to the contract between the Bank and the transporter. All these, he submitted, were designed to defame him and lower his reputation. 23 Mr. Outa was not in any doubt that the letter (exhibit PIV) which the second appellant sent by facsimile to the respondent was published to third parties and constituted the tort of defamation. He identified third parties who accessed the impugned letter, hence proving the publication of the defamatory contents. Mr. Outa identified the secretary who typed the letter as the first proof of publication. Before the second appellant faxed the letter, the initials "n.k.," appearing after the name of ALBERT ODONGO RELATIONSHIP MANAGER, proves that the secretary who typed was a publisher of the defamation. He secondly identified as publishers the Relationship Manager (Arusha) and the Human Resources Manager (Head Office), who received copies of the impugned letter and were publishers of defamatory contents. He also identified PW2 as a publisher. PW2 was the employee who happened to be at the fax machine, who not only read the letter but heard office gossip about what the respondent had done in the Mwanza Branch of the KCB. Concerning the freezing of the respondent's bank account, Mr. Outa argued that the first appellant could not escape the liability for unlawful freezing of the respondent's account and dishonouring his cheque. In urging us to dismiss the appellants' complaints, he referred us to paragraph 15 of the appellants' joint written statement of defence, where the appellants asserted that the first appellant was entitled to freeze the account and dishonour the cheque as the way to exercise their right of a lien. The learned advocate also cited the evidence of DW1, who admitted that they froze the respondent's bank account and dishonoured his cheque to recover the money the appellants paid the transporter of the respondent's personal effects. In urging us to dismiss the appellants' grounds 16, 17, 18, 19, and 20, Mr. Outa submitted that the respondent sued the appellants on defamation because they froze the respondent's bank account, dishonoured his cheque, and declined to apologize. He argued that the trial and first appellate courts were correct in denying the appellants the defence of justification. He added that the accusation of fraudulence was an imputation of criminal conduct which rightly attracted high damages. He urged that factoring in the devaluation of Tanzania shillings should not justify our interference with the damages awarded by the two courts below. On our part, we have considered the oral and written submissions by the two learned advocates on all the grounds of appeal. We have immensely benefitted from the authorities the learned advocates relied on to cement their submissions. For purposes of determination of this appeal on the tort of defamation, we shall begin from a settled premise that when sitting to hear a second appeal, this Court will not readily interfere with the concurrent finding of facts of the trial and the first appellate courts unless there is a misapprehension of the nature and quality of evidence that the courts below relied on to prove the elements and defences constituting the tort of employers' defamation against employees. The essential ingredients constituting the tort of defamation (libel), which the competing parties in this second appeal directed their evidence, are as follows: First, whether the statement (exhibit PIV) was defamatory to the respondent. The second essential ingredient centres on the publication of the letter the respondent alleges to be defamatory to him, specifically, whether the respondent proved the publication of the defamatory statement to a third party. Thirdly, can the appellants, as employers who wrote that letter to initiate disciplinary proceedings against the respondent, rely on any such defences as truth, justification, or qualified privilege? Finally, what extent of damages should the respondent be entitled to in the circumstances of this second appeal? Concerning the question of whether exhibit PIV was defamatory to the respondent, we will look back at the impugned letter, which we reproduce for ease of reference: "KCB/MZA/03/1166 01/03/2005 MR SHADRACK NDEGE S/NO. 500/47 THRO: THE MANAGER KCB ARUSHA. RE: TRANSPORTATION O F PERSONAL EFFECTS We note the follow ing: • On 02/02/05, the Branch released you to prepare yourself to report to Arusha Branch on 07-02-2005. • On Saturday 05-02-2005, a t the dose o f business, you presented the Branch with 3 quotations for transportation o f your personal effects. You requested for urgent approval to enable you to conclude with the transporter and move with your personal effects to 27 Arusha over the weekend to m eet your reporting deadline. • Based on this urgency, the Branch made a Management decision and gave you a Bank cheque o f TZS. 1,400,000/= to pay M/s R iziki Kaiebi Mbise which was the low est o f the 3 quotations. This cheque was presented to us for paym ent on 07-02-2005. We also paid you m ileage allowance o f TZS. 450,000/= to enable you to drive with your daughter to Arusha. • We have subsequently learnt that you did not transport anything to Arusha as you had indicated. A s a consequence, Head office have declined to approve, in retrospect, your quotation for transportation o f personal effects. • On 24-02-2005, the undersigned telephoned you in Arusha and inform ed you o f this decision and requested you to arrange to recover or return the TZS. 1,400,000/= paid for transportation o f your personal effects. • We regret to note that within m inutes o f your telephone conversation o f 24-02-2004, you transferred the TZS. 2,000,000/= which had been lying in your personal Current Account No. xxxxx to the account o f a fellow sta ff member and the money was im m ediately withdrawn. • You subsequently inform ed me that you are unable to recover the TZS. 1,400,000/= from M/s Kaiebi R iziki Mbise as he is away In M alawi and his return date is unknown. In view o f the foregoing sequence ofevents:- 1. You are now form ally instructed to im m ediately recover or return the TZS. 1,400,000/= to the Bank. 2. Do not transport any personal effects to Arusha without p rio r verification o f the item s by the undersigned, and also subsequent verification o f the goods on arrival by the Manager o f KCB Arusha. 3. Show cause in your reply why appropriate disciplinary action should not be taken against you fo r fraudulently claim ing TZS. 1,400,000/= from the Bank. Meanwhile, please acknowledge receipt o f this letter on the duplicate copy and note that your reply should reach the Manager, KCB Arusha by 4.00 p.m. today. Yours faithfully, tam a ALBER T ODONGO RELATIONSHIP MANAGER C.C. HR Manager, Head O ffice." Mr. Outa, the learned advocate for the respondent, supported the conclusion of the first appellate court that the letter was defamatory to the respondent. The first appellate judge determined that the letter's contents were not truthful in material facts to justify the second appellant to blame the respondent intending to defraud the Bank of TZS 1,400,000/=. He described the impugned letter as an unfounded hoax by an employer out to embarrass and defame an employee. The learned judge distinguished the principles the High Court had laid down in the case of AMOS JONATHAN V. J.S. 29 MASUKA & OTHERS [1983] TLR 201 as inapplicable to save the appellants from defamation liability because the learned judge insisted, through exhibit PIV, the appellants as employers, communicated unfounded allegations designed to defame their employee, the respondent. The learned judge also relied on the case of PETER NG'HOMANGO V GERSON MWANGWA & ANOTHER (supra), to conclude that the letter was false, hence defamatory of the respondent. In so far as Mr. Rwazo, the learned advocate for the appellant, was concerned, exhibit PIV was not defamatory because the employer was merely asking the respondent employee, in the course of his employment, to show cause why his employer should not take disciplinary action against him for fraudulently claiming TZS 1,400,000/= from the Kenya Commercial Bank. He insisted that the employers asked the employee to help recover TZS 1,400,000/=, which the bank had earlier paid PW3 to transport the respondent's luggage from Mwanza to Arusha. He pointed out that following the intervention of the respondent, PW3 refunded TZS 1,400,000/= to the KCB Mwanza branch. In our determination of the question of whether the letter to show cause was defamatory to the respondent, we shall begin with the import of the decision of the High Court in AMOS JONATHAN V J.S. MASUKA & OTHERS (supra), which the first appellate judge distinguished as inapplicable. We have a respectfully different opinion from the first appellate judge. On a closer reading, AMOS JONATHAN V J.S. MASUKA & OTHERS (supra) is applicable as it is persuasive to matters at hand because it articulates correctly the outlines of the scope of liability of employers over defamation of their employees in Tanzania and possible defences. Amos Jonathan filed a defamation suit against his employer, the defunct Nyanza Industrial Company, which ran Nassa cotton ginnery. Amos Jonathan worked as a clerk at a Nassa ginnery. The first defendant, J.S. Masuka, was an Administrative Manager, and the second and third defendants were artisans at the same place. The fourth defendant was the employer of all three defendants, including Amos Jonathan. The duties of Amos Jonathan included recording the names of casual workers in the master roll and preparing payments for them. On 9 August 1973, the Ginnery Manager wrote a letter (EX. D) to Amos Jonathan telling him that it had become known that he was defrauding the Company by including false names in the master roll and receiving their payments. He asked Amos to explain by 10 August 1973. On 14 August 1973, J.S. Masuka (the Administrative Manager) wrote a letter to Amos Jonathan (EX. A) informing him about his dismissal immediately because of his dishonesty and swindling of the Company. Amos took the matter up with the workers' committee (the second and third defendants were the Chairman and Secretary, respectively). The committee investigated the complaint, deliberated, and communicated the outcome to Amos in a letter dated 6 September 1973 (EX. B). The letter informed Amos that the committee supported the management's dismissing him and that the committee was not there to defend thieves. Later, Amos Jonathan's dispute went to the Conciliation Board, which decided that the employers had wrongly dismissed him. The Board ordered reinstatement without loss of his career. The management refused, saying they no longer had any faith in him. They agreed to terminate his service with benefits instead of dismissal, which was the end of the matter so far as the Company was concerned. On 14 May 1974, Amos filed a suit in the High Court, claiming damages to the amount of TZS. 30,000/=. The basis of Amos Jonathan's case was that the Administrative Manager (first defendant) and the second and third defendants defamed his character by calling him a thief. The fourth defendant was joined in its capacity as the employer of the first three defendants and bore vicarious liability for their vicarious actions. The trial High Court at Mwanza (Munyera, J.) reiterated vital outlines and scope of employers' liability for defamation of employees in Tanzania. The learned judge agreed that there was a publication through letters (EX.A, B, and D), and the publication (the letters) contained defamatory matters in that it accused Amos Jonathan of having committed a criminal offence. The trial judge looked up for possible defences employers have when facing defamation suits by their employees. He asked whether the employer and the staff who the plaintiff sued had any defence over defamatory letters. The trial judge ruled out the defence of justification they alleged in their letters (EX.A & B). Although the defence of justification was not available in the circumstances, the defence of qualified privilege was available to the defendants. The trial judge dismissed Amos Jonathan's suit and noted that qualified privilege covers the publication of defamatory matter by a person with a legal, social, or moral obligation to publish. The recipient has a legal, social, and moral duty to receive the publication. He pointed out how the defence of qualified privilege covered employers whose communications are defamatory, and they cannot rely on the defence of justification. The first defendant was an administrative manager, he pointed out, whose responsibility was to take care of the discipline of the workers in his organization. The first defendant had powers to dismiss unbecoming workers and inform the unbecoming workers why he dismissed them. He added that the copying of the letter (EX.A) to the ginnery Manager at the headquarters, various branch managers of the Company, the personnel section, and the accounts section were all covered by qualified privilege because all of those who received copies of the letters had a duty to know of the situation. The trial judge gave a condition for the defence of qualified privilege to apply those publications of the letters never went beyond those who had a duty to know the situation. Looking back, the decision of the High Court AMOS JONATHAN V J.S. MASUKA & OTHERS (supra) is persuasive today as it reiterated the principles of law governing protecting the employers, who, without malicious intention, take disciplinary measures against employees for unbecoming conduct without fearing defamatory suits and resultant damages. We note that in his considered decision, the first appellate judge, while accepting the principles of law highlighted in the High Court decision in AMOS JONATHAN VS. J. S. MASUKA & OTHERS (supra), he distinguished that decision as inapplicable because, in this appeal before us, the impugned letter was an unfounded hoax: "This court is in agreem ent with the authority in Am os Jo n a th a n 's case (supra) that em ployers are entitled to require their employees to show cause in suspected disciplinary m atters. However, this case is distinguishable from the circum stances o f the case a t hand. In the instant case, as seen above, the allegation was a hoax. This court believes that the authority in Am os Jo n ath an 's case did not mean to bless unfounded hoax allegations by em ployers which would em barrass and defame em ployees." We think that had the first appellate judge re-evaluated the entire evidence; he would not have consigned exhibit PIV as an unfounded hoax. Learned judge Munyera concluded that the letters contained defamatory matters. It accused Amos Jonathan of committing a criminal offence because the investigating committee and Conciliation Board heard the allegations. In the instant appeal before us, exhibit PIV was not subjected to a hearing before any disciplinary board to conclusively say the second appellant had no justification to accuse the respondent of fraud. The evidence on the record of appeal shows the appellants had a basis and probable cause to write the letter and raise issues for the disciplinary body to receive evidence from parties before making its determination. Evidence on record of appeal shows the appellants accused the respondent of failing to use TZS 1,400,000/= to transport his personal effects and used it in a way his employer did not authorize. When the appellants pressed him further, the respondent collected a cheque from PW3 and personally handed it over to the KCB. These triable issues awaiting the employer's disciplinary body do not support the suggestion that exhibit PIV was an unfounded hoax. In Amos Jonathan's case (supra), the trial judge ruled out the defence of justification because the employer and the staff who sent the defamatory letters did not in the Conciliation Board prove beyond reasonable doubt that Amos Jonathan committed the criminal offence. It is different for the respondent Shadrack J. Ndege, who did not appear before any Disciplinary Board to disprove the allegation of fraudulence. Therefore, it was premature to dismiss the contents of the impugned letter as an unfounded hoax. On its face, the letter (exhibit PIV) which the second appellant sent to the respondent, accuses him of fraudulently claiming TZS. 1,400,000/= from the Bank, and would ordinarily remove the defence of justification from the appellants. However, unlike in AMOS JONATHAN V J.S. MASUKA & OTHERS (supra) where the defamatory letter was subjected to disciplinary proceedings before the workers1committee and found to lack justification, the letter (exhibit PIV) in the appeal before us was not discussed by the employer's disciplinary body and we cannot outrightly rule out the defence of justification. We think, the two courts below failed to evaluate the evidence of the transporter, PW3, and his closeness to the respondent. Following the accusation of fraudulence, the respondent reached out to the transporter, urging him to return TZS 1,400,000/= to the appellants. In exhibit PV, the respondent attached his letter dated 18 March 2005 to the transporter (PW3). Titled, "Return of TZS 1,400,000/= to the Bank, KCB (T) LTD". Had the first appellate judge re­ evaluated this letter, he would not have realized that the appellants had the justification to write directly to the respondent to recover the TZS 1,400,000/= from the transporter. In exhibit PV, the respondent blames the transporter (PW3) for failing to transport his personal effects to Arusha, resulting in the KCB accusing him of making a fraudulent claim for that money. The respondent acknowledges that up to the date of the letter (18 March 2005), PW3 had not transported anything yet. The respondent copied the letter to the Relationship Manager (KCB Mwanza), Relationship Manager (KCB Arusha), and Human Resource Manager (KCB Head Office). In addition, the respondent's Plaint attached his replying letter dated 1 March 2005, which ends with a pledge to the appellants that reads: "Meanwhile, I can volunteer to recover the said am ount from the transporter in question, if necessary." Unlike in the case of AMOS JONATHAN V J.S. MASUKA & OTHERS (supra), where the disciplinary committee subjected defamatory letters to disciplinary hearings and found lack of justification, the respondent in our appeal filed a suit in the Resident Magistrate's Court of Mwanza before the appellants (employer) convened a disciplinary proceeding to hear both the respondent and the transporter (PW3). As a result, the respondent failed, on the balance of probabilities, to prove that the letter (exhibit PIV) was conclusively defamatory to him. Before we move on to the second essential ingredient, proof of the letter's publication to a third party, the case of AMOS JONATHAN V J.S. MASUKA & OTHERS (supra) reiterates the position of law to the effect that the tort of defamation by employers recognizes the responsibility employers have to take care of the discipline of the workers in workplaces. It also reiterated the law that the defence of qualified privilege is available where employers communicate letters that employees may regard as defamatory as long as these letters reach only those who have to know of the situation through the letters. As the persuasive case of AMOS JONATHAN V J.S. MASUKA & OTHERS (supra) articulates, the second appellant before us, who sent the letter (exhibit PIV) to the respondent copied to other officers, had legal, social, or moral obligations to publish that letter. The Manager KCB Arusha, HR Manager Head Office, who received the impugned letter, had a legal, social, and moral duty to receive the publication. They are all covered by qualified privilege against any claim that exhibit PIV was defamatory. DW1 denied disclosing the content of his letter (Exhibit PIV) to outsiders. He pointed out that there was no way PW2, a cashier and bank teller, could access and read the contents of a fax service. Only the branch manager and his secretary could read the fax message. Mr. Rwazo, for the appellants, argued that there was no publication of a defamatory statement when an employee (PW2) read the contents of that letter during her employment. He faulted the first appellate judge for failing to find that PW2, a cashier and not a secretary with access to the fax machine, had no business in the fax machine room where office letters are sent or received. He urged us to seek persuasion from an English case of HUTH V. HUTH (1915) 3 K.B. 32, where a butler opened a letter destined for his master, and the King's Bench held that the butler's curiosity could not make the defendant liable for the publication of contents of the defamatory letter. By analogy, Mr. Rwazo urged us not to allow PW2's curiosity to read letters passing through her employer's fax machines to expose her employers to liability for publishing defamatory statements. The learned advocate for the appellant argued that apart from PW2's unauthorized access and officers who received official copies of the letter in their official capacities, there is no evidence that those outside the Arusha Kenya Commercial Bank branch read that letter. From submissions of the two learned advocates on the issue of publication of the impugned letter, it is evident that PW2 was not authorized to access the letter destined to reach the respondent. The case of HUTH V. HUTH (supra), which Mr. Rwazo cited, persuades us to conclude that by PW2 reading the impugned letter, did not amount to publication. Captain HUTH was a defendant. He sent a letter to his four children. The words in the letter implied that his four children were illegitimate. He placed the letter in an envelope that was not sealed or glued. Captain Huth sent it through the post and reached the children's mother's residence. The butler who received the letter opened and read the contents out of sheer curiosity. There were no circumstances to suggest the defendant who sent the document had intended a third party to open the envelope. The legal issue was whether opening the butler's unsealed envelope amounted to a publication by the defendant who sent that envelope. As the Court of Appeal of England and Wales in HUTH V. HUTH (supra) said, it is not part of a butler's duty to open his employer's letters, and his doing so could not make the employer liable for defamation. We hold that PW2's unauthorized access to the impugned letter should not make the appellants, her employers, liable for the publication of the letter's contents. In addition, we do not agree with Mr. Outa's suggestion that the secretary who typed the impugned letter, the Manager KCB Arusha, who forwarded the letter to the respondent, and the Human Resources Manager (Head Office) who received copies of the letter should count as the publication of the impugned letter. That line of reasoning will transform workplaces into breeding grounds for defamation suits against their employers. We have in mind here the warning in AMOS JONATHAN V J.S. MASUKA & OTHERS (supra) of the dangers of turning disciplinary proceedings in workplaces into defamation minefield at workplaces. For the above reasons, we conclude that the second appellant did not publish the impugned letter (exhibit PIV). We allow the appellants' grounds of appeal number 6, 8, 9 and 10. Finally, we have considered all grounds of appeal and have found that the respondent has not proved on the balance of probability that the impugned letter (exhibit PIV) was defamatory to him. After concluding that the unauthorized access of the letter by PW2 did not amount to publication to a third party, we set aside the award of damages by the courts below. For the above reasons, we shall allow this appeal. The appellants shall have the costs in this Court and the two courts below. DATED at MWANZA this 27th day of February, 2025. I. H. JUMA CHIEF JUSTICE F. L. K. WAMBALI JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL The Judgment delivered this 28th day of February, 2025 in the presence of Mr. Libent Rwazo, learned counsel for the appellants, vide video conference from his office at Dar es Salaam and Mr. Egbert Mujungu, learned counsel holding brief for Mr. Deya Paul Outa, learned counsel for the respondent, is hereby certified as a true copy of the original. CHAUNGU REGISTRAR OF APPEAL 44