20071130 TZHC Mwanza

,··Jr 1··~11.-,tt \.:! .,• IN THE HIGH COURT (?F THE UNITED REPUBLIC OF TANZANIA '.. " :'(----, IN Tt4-E,_DISTRICT REGISTRY .. .. •,. ., ~ ? ATMWANZA HIGH COURT CIVIL CASE NO. 07 OF 2004 (ADR NO. 07/2004) KIRIGITI SASI ................................. PLAINTIFF Versus 1. MUHERE MWITA MALICHA } 2. THE VILLAGE CHAIRMAN ......... DEFENDANTS RULING 2/10 & 30/11/2007 Sumari, J. The plaintiff Kirigiti Sasi, through his advocate, Mr. Magongo, advocate instituted a defamation suit against the defendants claiming among other reliefs Tsh. 140,000,000/= as general damages for libel and false imprisonment. I The defendants who are represented by Mr. Byabusha, learned advocate in their joint Written Statemeht of Defence raised two preliminary points of objections (P.Os) and thereafter proceeded "without prejudice" to give their defence. On 2/10/2007 by consent the parties . greed to argue the P.Os by way of written submissions. In his written submission, Mr. Byabus a submitted that amended plaint is defective for failure to attach a lit ral translation of the words ~ alleged to be defamatory of the plaintiff. Instead of attaching a -~ translated version, the plaintiff has, in paragraph 6 of the amended 1· plaint, provided what he thinks is the meaning of the words quoted i_n Kiswahili in paragraph 5 of the amended plaint. According to Mr. Byabusha, in law, the plaintiff was .required to provide a translation of the words which correspond as nearly as possible to the words written in the said letter. That plaintiff has failed to do so. He has referred the court to a case of CHRIS WABUKUNDI v. THE CHAIRMAN/EXECUTIVE SECETARY, TARIME RURAL DEVELOPMENT TRUST FUND (HIGH COURT CIVIL CASE NO.40/1999 - MWANZA ..:..UNREPORTED). In this case Mroso, J; as he then was, referring to authorities in East Africa and England stated: ''But would wish to add that if the actual words alleged to be defamatory are not set out in the plaint even the court itself will not be able to .. come to a decision if, in fact and in law✓ there was defamation of character. It would have to depend on the opinion of the plaintiff thai he was defamed . by the defendant. That would not lead to justice. It I is obvious, therefore, that the 1omission by the plaintiff. to set out in the plaintj the exact words alleged to be defamatory of him i · a grave one and has rendered the plaint seriously dJfective. " It is the contention of Mr. Byabusha t at in our case at hand, the "'plaint is seriously defective. The plaintiff ex ects the court to rely on his opinion given in the paragraph 6 of the am ·nded plaint that the alleged 2 ..... letter was defamatory of the plaintiff. Thus, prayed the amended plaint to be struck out with costs. ' .,I ' I I Mr. Magongo, learned advocate for plaintiff, in response to this lr ' point, submitted that, Mr. Byabusha's point would have been valid if the language used by the plaintiff was a foreign language. That in the instance case the· language used is Kiswahili which is the national language~ He stressed that, the language · which indeed is the constitutional language, Cap. 2 of the Laws (R.E. 2002). For Mr. Magongo, there is no rule of law or practice that in Tanzania where the words complained of are in Kiswahili they must be translated into English. Further to that he is saying that Kiswahili being the original language and ·not foreign language of the parties and in Tanzania the cited cases by the defendants are not applicable in the instance case. What plaintif( did is to reproduce the defamatory passage in paragraph 5 of the amended plaint as required under the rules of pleadings. He cited to this court a case of MSA PHARMACEUTICALS LTD V TIMES NEWSPAPER LTD AND ANOTHER (1972) 3 ALL E.R. 417. For him though the wl:lole letter was annexed to I the plaint, the particular defaming statements rere set out in paragraph 5 and 6, which paragraphs contains all necessary allegations ought to be in the pleadings. He wond~rs whether it Jould be in the interest of justice or the benefit of parties to use the for~ign language i.e. English instead of Kiswahili, the language of the partiet ,, I have given Mr. Byabusha's complaint great consideration; that· 1 the plaint is seriously defective for want o· attachment of. a literal 3 \ trans1ation of the ·words alleged to be defamatory of the plaintiff. ~k-- I ~;•'-, However, his cited case of Chris Wabukundi (Supra) has been very vital and helpful to me in reaching desision. The quoted ·passage stated by His Lordship, Mroso J; as he then was, if well understood, requires r that the actual words, alleged to be defamatory must be set out in the plaint to enable the court to come to a decision, in so doing, that would _lead to justice. What the plaintiff did, as well put by Mr. Magongo, is to reproduce the actual words which the plaintiff is alleging to be defamatory, from the letter annexed to the plaint to paragraph 5 of the plaint. (Emphasis added). That the actual words were extracted from the said letter annexture 'A', to read as a passage in paragraph 5 of the amended plaint and this is one of the rules of pleadings as well guided in the case of MSA Pharmaceuticals Ltd (Supra). As well put by Mr. Magongo, which I fully subscribe, there is no rule of law or practi~e in Tanzania that requires the words complained--.. of, if are in Kiswahili should be translated into English. What is strictly required in law and particularly in the cited a'.uthorities by Mr. By.abusha, • I is that the words alleged to be defamatory must I be set out in the plaint into a language exactly known by the parti~s. The objective behind is I . because justice can only be done if the defendant knows exactly what words are complained of; so that He can preJare his defence. As far as the question of language· used is concerned, in our case at hand, the cited cases by Mr. Byabusha are very distinguishable. They -centred on a situation where the languag. used like in the case of NKALUBO V KIBIGIRE (1973) E.A. 102 is different to English as it was in the Luganda language,· and not in the dfficial language, which was 4 . , \ / ' . English. Our position in Tanzania is quite different. ~ The la~gual-, ! written in the letter is Kiswahili, the official and fortunately Nation~ I language. It is therefore unfounded to say that since it was not\ translated in English, the same is defective. The 1st preliminary point of 1 law is not sustainable. As for the second point of preliminary objection, Mr. Byabusha, submitted that malicious process or arrest alleged by plaintiff is not actionable and the court lacks jurisdiction to entertain the suit. His basis of argument relied o_n the provisions of Section 7 of Criminal Procedure Code, Cap.20 of the Laws (R.E.2002). That this provision imposes a duty on every citizen to volunteer information on commission of crimes and it protects such informer against criminal cases or civil proceedings for damages irrespective of whether the information was given in good faith or with malice. He. referred this court to a case of MAJUMBA JIWAJI V BUDU MNYAGOLYA (1992) TLR 310. Further to thGlt Mr. Byabusha is saying that the complaints contained in the ann~xture "A" to the amended plaint, is the information which caused the\ arrest of the plaintiff, then the two causes of action an inseparable.\ And that the information reveals no connotation of malice on the part of the first defendant to _enable court hold the second defendant vicbriously liable. To him this court cannot go further to inquire whether+ not the defendants did so with malice. He prays the entire suit to be di\smissed with costs. · • Mr. Magongo, vehemently submitted that the 1st defendant who wrote the said letter .annexture A is a perJon in the authority in the 5 . / locality to the District Commissioner. I The cited S.7 (supra) requires that a person in authority in the ·locality should report to the nearest police station but instead the defendant, a person in the authority has authored a letter to the D.C., 2nd defendant. That the letter is concerned with a lot of informations not relevant to any crime such as plaintiff filing a civil suit against the villages, therefore, it is not information concerning commission of or. intention to commit any offence. Mr. Magongo, submitted more than these points but suffice to have those few which I subscribe. That I am satisfied that the said letter annexture "A" does not fall in the ambit of the provisions of section 7 of Criminal Procdure Code, as submitted by Mr. Byabusha, for defendant. As such the 2nd point of preliminary objection also fails. Accordingly the preliminary points of objection are overruled with costs. Costs to follow events. ~Uh•. A.N.M. Sumari I JUDGE I Delivered in presence of defendants only. I . I ., 6