Ruling Miscellaneous Civil Cause No

THE JUDICIARY OF TANZANIA

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT MOSHI MISCELLANEOUS CIVIL CAUSE NO. 18986 OF 2024 RICHARD MICHAEL MEELA…….............................................PETITIONER

VERSUS LAWRENCE JONATHAN MLAY……………………….....…...RESPONDENT

RULING 9th October to 6th November, 2024 MONGELLA, J. The petitioner herein has sued the respondent for allegedly making defamatory statements against him. In his reply to the Petition, the respondent raised a preliminary objection to wit; This application is bad in law for contravening Order IV Rule (1) of the Civil Procedure Code [Cap 33 RE 2019]. The objection was resolved by written submissions whereby the respondent was represented by Mr. Philip Njau while the petitioner was represented by Mr. Paschal Livin Mshanga. The respondent Page 1 of 7 complied with the fixed schedule in filing his submission in chief in support of the preliminary objection. However, the petitioner did not file his reply submission. Strangely, while appearing before this Court for necessary orders, none of the parties addressed this issue but Mr. Njau stated that parties had complied with the fixed schedule. However, the petitioner’s submission is nowhere to be seen both, physically and electronically vide eCMS despite instructions by this Court that the parties should upload the same electronically. In that respect, the applicant’s omission to file his reply submission amounts to non-appearance in hearing of this matter. The effect thereof is for the case to proceed in his absence. See, MPS Oil (T) & 2 Others vs. Citibank (t) Ltd (Misc. Application No. 248 of 2014) [2015] TZHCComD 2239 (4 March

2015); and Dhow Mercantile (EA) Ltd & 2 Others vs. Registrar of Companies & 4 Others (Commercial Case No. 62 of 2003) [2009] TZHCComD 4 (2 May 2009). Addressing the point of objection, Mr. Njau on behalf of the respondent, averred that it is trite law that where an aggrieved party seeks remedy through the court, he must move the court in accordance with the prescribed law. He submitted that the application at hand is based on defamation statements purported to have been uttered by the respondent and the petitioner seeks compensation for damages suffered thereof. In the premises, he contended that the nature of the suit is a civil claim under tortious liability and therefore the applicant was enjoined to move this Court vide the Civil Procedure Code [Cap 33 R.E 2019]. Page 2 of 7 Referring to the provisions of the law, Mr. Njau averred that Section 22 and Order IV Rule 1 of the Civil Procedure Code require suits to be instituted by way of Plaint. In the circumstances, he challenged the matter at hand for being filed by way of Petition. He alleged that since Order IV Rule 1(1) of the Civil Procedure Code uses the word “shall”, according to Section 53(2) of the Law of Interpretation Act [Cap 1 R.E 2019] the requirement is mandatory. Mr. Njau further acknowledged that matters bases on defamation are regulated under the Media Services Act, 2016. He added, as per Rule 4 (1) of the

Media Services (Defamation Proceedings) Rules 2019, claims for defamation are instituted by way of petition. However, on the other hand, he argued that the types of defamation recognized under that law vide Section 35 of the Media Services Act and vide the definition of the term “defamation” under Section 3 of the same act are those involving defamatory statements published through media. On the matter at hand, he contended that the applicant in his petition alleged that the defamatory statements were uttered, thus not fitting the requirement under the relevant Media laws. He fortified his averment with the case of MW Rice Millers Ltd vs. Mwasa Security Limited (Civil Appeal 10 of 2022) [2022] TZHC 12118 (10 August 2022) TANZLII. Further, insisting that the Petition was not a proper document to be filed, Mr. Njau referred to the definition of “petition” as supplied by the Black’s Law Dictionary, 6th Edition to wit, “a formal written application to a court requesting action on a certain matter …”. Page 3 of 7 He was therefore of the view that the remedies sought by the petitioner are of civil nature far from the remedies sought through a petition. Considering the anomaly by the Petitioner, he had the stance that the remedy is for the application to be dismissed or struck out for being incompetent. He as well asked for costs. Mr. Njau surprisingly filed a rejoinder submission. I

shall not observe the rejoinder submission because, the applicant filed no reply submission rendering there being nothing to rejoin upon. Having considered the submissions of the respondent, I find it apparent that the competence of the petition at hand is in question. The respondent’s concern, as presented by his learned counsel is the Petition has not been properly presented before this Court. His contention is that the matter ought to have been filed as a normal civil suit, that is, by way of Plaint as directed under Section 22 and Order IV Rue 1 of the Civil Procedure Code as in accordance with Section 35 of the Media Services Act and Rule 4 of the Media Services (Defamation Proceedings) Rules, the type of defamation complained of by the Petitioner is not covered. Before deliberating on this point of objection, I wish to re-state the settled legal position that preliminary objections must be on pure points of law and not on facts that need to be ascertained. This was well stated in the case of Soitsambu Village Council vs. Tanzania Breweries Limited & Another (Civil Appeal No. 105 of 2011) [2012] TZCA 255 (17 May 2012) TANZLII whereby the Court stated: Page 4 of 7 "A preliminary objection must be free from facts calling for proof or requiring evidence to be adduced for its verification. Where a court needs to investigate such facts, such an issue cannot be raised as a

preliminary objection on a point of law. The court must, therefore, insist on the adoption of the proper procedure for entertaining applications for preliminary objections. It will treat as a preliminary objection only those points that are pure law, unstained by facts or evidence, especially disputed points of fact or evidence. The objector should not condescend to the affidavits or other documents accompanying the pleadings to support the objection such as exhibits." Further, preliminary objections are founded on the assumption that the pleaded facts are true. This was well provided in Mukisa Biscuits Manufactures Limited vs. West End Distributors [1969] EALR 696 whereby the defunct East African Court of Appeal stated: “A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.” See also, Safia Ahmed Okash (As Administratrix of the estate of the late AHMED OKASH) vs. Ms. Sikudhani Amir & Others (Civil Appeal 138 of 2016) [2018] TZCA 30 (25 July 2018). on record.” Upon observing the Petition filed by the applicant, I found he pleaded that defamatory statements were made against him by the respondent. He however never stated that

the statements were Page 5 of 7 published. This connotes that he pleaded the statements being uttered. Defamation is defined under Section 35(1) of the Media Services Act as: “Any matter which, if published, is likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule, or likely to damage any person in his profession or trade by an injury to his reputation, is a defamatory matter. The law requiring defamation to be preferred by petitions is Rule 4 of the Media Services (Defamation Proceedings) Rules, 2019. The provision reads: “4.-(1) Legal proceedings under Part V of the Act shall be instituted by way of a petition in the Form DP set out in the Schedule.” To this point, it ought to be noted that the defamation covered under the Media Services Act, 2016 involves matters published through the media. According to Section 3 of the Media Services Act, the term “media” means: “... the industry, trade or business of collecting, processing and dissemination of content through radio, television or newspapers, and includes online platforms;” The term “publishing” means “... to disseminate content to one person or to the general public.” While “publication” entails “... any communication of content through media.” Page 6 of 7 From the foregoing, since there is nowhere in the petitioner’s Petition pleaded that the alleged defamation was ever published

through the media, the application was not to be filed under the provisions of the Medial Services Act and Rules. The applicant was not required to file a Petition, but rather a Plaint pursuant to Section 22 and Order IV Rue 1 of the Civil Procedure Code. In the light of the observations made hereinabove, the applicant’s Petition is found to be improperly before this Court. The same is hereby struck out with costs. Dated and delivered at Moshi on this 06th day of November, 2024. X L. M. MONGELLA

JUDGE Signed by: L. M. MONGELLA Page 7 of 7