19871218 TZCA Dar es Salaam2

IN THE OOURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM -. (~~ OMAR. 2 J.A. 2 ·MFALILA 2 Ag. J.A. 2 ,And ll'lAPIGANO 2 .Ag 4 J.A.) CIVIL APPEAL NO. 38 OF 1987

BETWEEN MAKORI J. B. WASSAGA. .. • • • • • • APPELLANT .Al® 1 • · JOSHUA MWAIK.1\MBO A 2 ~ HAMISI r'IPEN:OU f• • . . . 0 • • RESPONDENTS {Appeal from the judgment and decree·of the High .Court of Tanzania at Dar es Salaam) .(Kazirnoto, J.) dated ths 9th d.ay of April, 1987 in Civil case No. 132 of 1985 . JUDGMENT OF OMAR. J .A. g I ha:ve read the judgment of my brother Mapigano, Ag. JJ.. and while agreeing with him. :m the end result of the ·case I have. this to addg Thia is an a:r;peal frot1 a suit of defamation brought by the plaintiff now the appellant against the two defendants/respondentso It concerns the letter, Exhibit PI, written by the second respondent the Security Officer on the instructions of the first respondent the Acting General Manager of the Building Hardware and Electric Supplies Company Ltd. - Bhesco for short. The parties to the suit were all employees of Bhesco. It transpired th3t in the month of March, 1983 one Mr. Ikidi went to Bhesco with a l<ft:ter froo the Ministry of Wor1'8 recommending him. to be supplied with 45·0 pieces of weldmesh for his Company known as Messrs Okidi & 8 ons Building Contractor Ltd. The appellant as the Marketing Officer of Bhesco managed to get for Mr. Okidi the Weld.mesh plua other goods which he req'uirod and Mr. Okidi who knew that he had no money in the bank but expected soon to replenish his bank accotmt, was guaranteed by

the appellant the payment of goods bought which amounted to over shillings one million. When all the cheques paid by the appellant to Bhesco were dishonoured by the bank and returned to Bhesco with endorsement "refer to drawer" there was the meeting of management to discuss this irnp~sse and •••••• / ••• /2 .... ,, - 2 - impasse- and who could have caused it. Appellant was found to have by his action of guaranteeing the payments by cheque to have contributed in causing the loss to the (_'Col-:.pany.. A letter was written addressed to no one, but later reacheti .Anti-Corruption Squad and the police. Efforts were made to have the letter- reach Mr. Apiyo, the Principal Secretary, President's Office but were unsuccessful and in the process one Mr. David Jacob, P.. W.6 businessman who was asked to ooliver it to Mr. Apiyo was shown this letter and he read it and ultimately gave it to the appellant who was said to have made several copies of it•.. The letter is divided into two parts, the first part deals with appellant guaranteeing of cheques and thereby ca~sing loss to 13hesco and the second part talks of his properties, three_ houses, one at Sinza, one at Mwenge and the third at Mikocheni. He has four vehicles, two- pic'k ups for hire which are with Co-cabs, ·one mini bus for carrying passengers and the fourth car used by himself. He has one Company for clearing and Forwarding

purposes. Among these properties only one car and one house was proved to be his, others had no proof that they belonged to him. This allegation was considered by the trial judge to be sufficiently defamatory since it was false. The first part was not considered defamatory since the statements were a mere narration of events that led to the loss of Bhesco 1 s money. The tria1 judge_ found. the occasion privileged and that there was no malice which could have negatived it. I find that both parts were not even defamatory. The law recognizes in every man a right to have the estimation in which he stands in the opinion of others unaffected by false statements to his discredit. Supposing this question of possession of cars, houses and businesses. is false in what way has it injured his reputation or credit as a CCM Secretary and Pleader, the esteem in which he is held, the good will entertained towards him or the conf:W.ence reposed in him by other persons. To call an aspirant for political honour a socialist .•when in fact he does not belong to tile socialist party or to call ·him a capitalist when infa9t he does not belong to a capitalist pa.rty but his conduct in life is somewhat capitalistic is no more defamatory than to describe a Free Trader as a protectionist or a Protectionist as a Free Trader. It is a.•••••••••• /3 \ 1 l--- -- .;.. 3 - It j_s a :political requirement in

this Country that a holder of a political post should not own much property or amass a lot of wealth. So allegations of this kind against such a person might lead him•to be pro:i;:e rly examined as tb how he came by them but are not in themselves defamator-.1 within the legal meaning of the wordo Because they do ·not injure him in his profession, trade or callingo As had happened in this case tbe appellant was not proved to be possessing all that property which were alleged ago inst him. The falsehood ,alone does not :rn }~e it defa~nto~"Y it must be to his discredit it must impute to the appellant conduct which would injure him in the eyes of a considerable and respectoble class of the community tho'lilgh not in the eyes of the Corrmu:1:U;y rn a whole. .And not only that but it must also produce bad impress:1-on 0~1 the minds of average reasonable men. If a person hea;re that a DD;:i::cting manager has three houses and four cars ".'/'.:"'f);i:2. h3 autoI'l.;-;ti.caUy conclude, short of avidence 9 that he ho::; ob'~ained them by unfri:!..': 1rD2·,1E~ If he does so he would not be called a reaso.:'lable .man. Fc.i::- it .;_s 1:,YG every worker in the parastatal organization or in the gover:r~n;ent clcoartment who is necessarily impecunious and bas a hand to 1r..ou-~'.1 l:i.'.ring. One can still look for a job in the Government of 'I::in:;a:1i.8 a'J.d get it and still be a man of

means" The Government 0f 'TQ11ZC:E1 J.D . is not out of bounds for people with a fair am<:Jlp1t q.f the readys so to speak. It is not therefore• malicious to write that arp2ll,mt has property because people in. this colh"1tr·y do ht,rv~ p.}'.'op0_,:-t::i.-:;3 from all sources, inheritence, hand outs fro:n rich rela:f;ives~ like gooi in--laws etc. and from their own progeny who keep something by fo:2 their pa~nts as a religious requirement of a good son or da'IJ{strter.· As for the plea that the publ iccJtion of this letter to P,,W.6 David., on outsider who had no interest in the Company whatsoever, was mcilicious 9 the law is very clear on thisc It says tr...at as a • general rule the defendant must be careful to make his corar:n.:,7ication only to ps,::.::=.:.:m.s who have a legitinEte interest or duty in relation to the subject ~atter. But where an occasion is privileged ths person / e:xe·rcisin::; the privilege is entitled .to t2.l:e all necesoG.';'."'.f o:r.: reasonable mea:::is of so domg and, provided the publicat·ion d,oe§ not go bey01-::d the exigency of the occasion, th~ me;r:Et fact that tl'lE: c'2f.s;:icitor'J matter is communicated to perz.ons who have no legitil:'.at•, :L'.:.~srest in the subject will not cJVoid the :p.r:ivilege. In this c.s3e P,,\·lo6 Davi.d haq to be shown the letter if he· wgis to deliver h~ by hand to Mr, A,_piyo, _Principal Secretary?

Pr~si9,eir(;,ffa Qffico~ aj_1.d the head of civil service. Otherwise how cou;Ld h.e be , - 4 - \ expected to tell him 9 by way of introduction what the letter was about, if he did not ascertain for himself first what its contents were. But what is surprising w~s the conduct of the appellant when this letter was handed to him by P.W.6 David. AppEllant on receipt of this letter made several copies of ito Hhat may one- ask did he yant those copies for·. To publicise himself what he thought was I defamatory of him? As I said earlier I can find nothing defamatory or malicious in both parts of the letter Ex:.P.l. Appellant was sacked b0cause of redimdancy exercise and this lettGr happened to be written at a. timG when this exercise was going on andithe conduct of the appellant in causing loss of over million shillings at that time may have ~dded fuel to the fire - of sacking - but the fire was already there. This appeal for reasons given above fails and is hefeby dismissed with costs to the respondents here and in the court belowo DATED at DAR ES SALAAM this 18th day of December 9 1987. A. M.A. OMAR JUSTICE OF .APPEAL 0 I certify that this is a true copy of the original6 ✓~, (J.Ho HSOFFE) SENIOR DEPUTY REGISTRAR.