MBARUKU MBARUKU CASE 0001

d•n B BBb BHa\PHB qd\rv BRE VE EH Hb MIB,b HbRHrULB=rv ul=X\dI VI– IHlqLHlqIH DAR ES SALAAM SUB REGISTRY AT DAR ES SALAAM CIVIL APPEAL NO. 17788 OF 2024 (Originating from Civil Case No. 202 of 2023 of in the Resident Magistrate of Dar es Salaam at Kisutu) MBARUKU SHABAN MBARUKU .............................................. APPELLANT VERSUS CATHERINE LUCAS KIBONA ••••H•••••H• H RESPONDENT JUDGMENT Date of Last Order: 24/09/2024 Date of Judgement: 31/10/2024 NGUNYALE, J. Ibis is the first appeal against the decree and judgment of the trial court whereby the tort of defamation is the subject matter under scrutiny. Earlier, the respondent CATHERINE LUCAS KIBONA alleged that the appellant MBARUKU SHABAN MBARUKU had defamed her on 13.08.2023 when he said that "...Catherine unaringa, unaringia uzuri wa bure, kumbe unaringia uzuri wa rasta. Unamdanganya Davi analea mtoto asiyekuwa wa kwake.." According to the respondent, the words were W scandalous and contemptuous against her and the welfare of their family. She is a married woman and the suit child his biological father is her husband, those words were defamatory to her, the family and the members of the society. ale appellant completely denied the allegations of defamation stating that, it was the respondent who insulted and used abusive language against him. Ttre contending position between the parties moved the respondent to file Civil Case No. 202 of 2023 in the Resident Magistrate Court of Dar es Salaam at Kisutu seeking various reliefs under the tort of defamation. TIe trial court exercised its jurisdiction to conduct hearing which was concluded on 26th June 2024 in favour of the respondent. ne trial court was satisfied that the appellant uttered defamatory statements against the respondent and the third parties. ne respondent as a successful party deserved necessary reliefs including compensation for the injuries suffered. The appellant was ordered one, to apologize two, to stop the habit of publishing defamatory statement against the respondent three, to pay the respondent general damages in the tune of 9,000,000/= and punitive damages in the tune of 1,000,000/= four, interest and five, litigation costs. The appellant was serious aggrieved with the findings of the trial court in favour of the respondent. He preferred the present =@ appeal predicated in the following grounds of appeal per memorandum of appeal dated 22-d July 2024; - 1. Tbat, the trial court grossly erred in law and in facts in pronouncing judgment in favour of the respondent while she completely failed to prove and establish all the requisite elements for the tort of defamation. 2. That, the trial court erred in law and facts in holding that the appellant had defamed the respondent while the complained words as given in her testimony were not defamatory in the eyes of the law. 3. Tbat, the trial court erred in law and facts in giving judgment in favour of the respondent while she failed without plausible explanation to call her material witnesses, who were allegedly to have witnessed and heard the defamatory statement uttered by the appellant. 4. Tbat, the trial court erred in law and facts in imputing malice to the appellant on the ground that he had refused to pay and finalise the DNA test something which was not true according to the testimony of DWI and DW2. M 5. That, the trial court erred in law and facts in awarding TZS 9,000,000/= and TZS 1,000,000/= for general damages and aggravated damages respectively, the amount which are extremely high and without giving reasons and/or legal justification for reaching such assessment. 6. That, the trial court erred in law and facts in deciding the entire suit against the weight of evidence. Ttle appeal was heard by written submission after the parties had sought leave of the court to argue the same by way of written submission and such leave was granted. I will be referring to their respective submission in the course of answering the grounds of appeal aiming to get a broad answer as to whether the appeal has merit or not. In the first ground of appeal the appellant complains that the elements of the tort of defamation were not established on evidence, it was his view that the court erred to decide in favour of the respondent. The appellant started his submission by defining the meaning of defamation by citing the case of Meneja Mkuu Zanzibar Resort Hotel versus Ali Said Paramana, Civil Appeal No. 296 of 2019 Court of Appeal of Tanzania also the case of Professor Ibrahim Haruna Lipumba versus Zuberi Juma Mzee [2004] TLR 381 and the case of PSSF versus Siriel Mchemba, Civil Appeal No. 126 of 2018 Court of Appeal at Dar es Salaam. After defining the same he insisted that the respondent in her testimony did not mention the person who were present and heard the defamatory statement because in the meaning of defamation the defamatory statement must be published. He invited the court to dismiss the lst, 2-d and 3’d grounds of appeal for being merited. Tbe respondent in her submission also started by defining the meaning of defamation by citing the case of Peter Ng'omango versus Gerson M. K. Mwangwa & Another, Civil Appeal No. 10 of 1998. She insisted that the statement of the appellant was defamatory in nature by citing the case of PSSF (supra) insisting that all elements of defamation were proved. After a careful scrutiny to the argument of the parties I am settled in my mind that this ground of appeal is bound to fail for the reasons which are going to be self-explanatory. Tbe trial Magistrate before she determined the elements of the tort of defamation she had time to consider at length the meaning of defamation and the elements of defamation. Upon defining defamation, she considered at length how those elements were reflected through evidence of PWI Catherine Lucas Kibona (24), PW2 Neema Adam Masawe (43) and PW3 Saraya Salum Nasoro (54) against the testimony of DWI Mbaruku Shaba and DW2 Jamila Juma Yusuph. I will also start with the discussion about meaning of the tort of defamation making reference to relevant authorities as my starting point to take off towards appreciating the work done by the trial Magistrate. In order to make my journey easy, I will start by referring to the case of Hamza Byarushengo versus Fulgencia Manya & 3 Others, Civil Appeal No. 246 of 2018 where the Court of Appeal of Tanzania defined a defamatory statement by considering literature of legal experts: - "One, a statement which tends to bring a person into hatred contempt or ridicule; two, words must tend to lower the claimant in the estimation of the right-thinking members of society in general; three, if words tend to cause the claimant to be shunned or avoided. " Again, in the case of Khatibu Said Bondo versus Juma Hamisi Mbozwa & 2 Other, (DC) Civil Appeal No. 10 of 2021 Court of Appeal of Tanzania redefined defamation by referring to the Halsbury's Laws of England Vol. 4th edition at page 7, where defamation is defined as follows: "A statement which tends to lower a person in the estimation of right-thinking members of society generally or to cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule or convey an imputation on him disparaging or Injurious to him in his office, profession, calling trade or business." Going to the utterances of the appellant as made on 13th August 2023, he cannot escape the obvious position that he committed the tort of defamation in its original meaning as correctly ruled by the trial Magistrate. In the evidence on record, it was proved that the appellant claimed that the child Ivan mothered by the respondent he was the biological father. Tbe evidence on record proved that he was not a biological father. What he did aimed to defame or lower the reputation of the respondent in front of her husband and other members of the society like PW2, PW3 and others who came to know the event. It was the testimony of PW3 that members around their locality at Mbezi Msumi came to know that the respondent was claiming a child from the respondent. Tbere is no doubt that the defamatory statements were published to the third parties by the appellant because they were communicated to the respondent and became known within the family and people around as testified by PW3. Tbe status of the respondent as a marriage woman was lowered due to those utterance because the members of the society around her premises considered her as a prostitute for a child to be claimed by two fathers. Tbe three elements of the tort of defamation were clearly established in the judgment of the trial court by considering the evidence before it. the evidence established that one, the appellant pronounced defamatory words two, the words were referred to the respondent three, they became known to PW2, PW3 and the people around the locality and four, the respondent suffered damage because her reputation was injured. By any means the first ground of appeal is bound to fail. The appellant in his second ground of appeal tend to fault the trial magistrate by stating that the complained words were not defamatory. In arguing the first ground of appeal I have established the elements of the tort of defamation and how the same were reflected through the evidence of both parties in record. I will be very brief in answering this ground of appeal because it has been covered while answering the first ground of appeal. In the present case, the words which were referred by the trial Magistrate to be defamatory were the statements made by the appellant to the respondent that, the respondent was cheating her husband that he is a biological father of the child while he is not, he is taking care of the child who is not his. In the case of Hamza byarushengo (supra) it was held that the statement seems to be defamatory because it brings the victim into hatred and tend to lower his or her reputation among the right-thinking rnembers of the society. In the present case it is immutable to consider those words are not defamatory. For a married woman to be told that their child was not fathered by her husband was subjecting her to hate for being immoral. In the case of The PSSF vs Siriel Mchemba (supra) which was cited by both parties it was observed that, the defamatory statement are not considered in the way the victim feels but the impression which is likely to make on those hearing the same. Tbe person who heard that a married woman has a child outside her marriage will draw an impression which lower the reputation of the woman. Therefore, in this case the statements of the appellant were defamatory in the face of the respondent and the third parties who heard about it. ne third parties include PW2, PW3 and other members around her locality. Tbe appellant in his third ground of appeal he complains that, the material witnesses, who were allegedly to have witnessed and heard the defamatory statement uttered by the appellant were not called. It has been established herein before that among the important elements of defamation is publication. It was the duty of the respondent to prove on the balance of probabilities that indeed it was the appellant and not any other person who published the alleged defamatory statements. In Hamza bYarushengo (supra) the Court of Appeal of Tanzania added; - 'M "Thus, in order to succeed in an action for defamation the plaintiff has to prove the following elements; that the defamatory statement exists, that the statement referred to him/her; that the statement was published; and that the plaintiff suffered damages" In proving the same, the respondent was free to call witnesses. The respondent testified herself and in addition she called PW2 and PW3 to corroborate her evidence. The defamatory statements were heard by the respondent PWI, PW2 the social welfare officer and PW3 who heard the way the event circulated within the society of their locality. Tbe allegation that material witnesses were not called are unfounded because the key elements were proved by the respondent. Tbe respondent in her evidence as DWI dissociated himself with publishing those defamatory statements. His evidence was overweighed by the respondent evidence who had a strong case. According to principle of the law laid in the case of Hemed Said v. Mohamed Mbilu [1984] TLR 113, a party with heavier evidence has the right to win the case. Therefore, I have no reason to fault the findings of the trial court that the appellant pronounced defamatory words and verbally published the same. TIle third ground of appeal is also dismissed for want of merit. In the memorandum of appeal, the fourth ground of appeal premised by the appellant was that the court erred to rule that the appellant had refused to pay and finalise the DNA test some Wing which was not true according to the testimony of DWI and DW2. On the 4th ground of appeal, the appellant submitted that the trial court judgment used the word prostitute which was not reflected in the testimony of the respondent and the pleadings. In reply the respondent in her submission stated that the appellant maintained that he is the biological father of the child the idea which gives the same interpretation. I revert to my earlier stance that, the trial Magistrate examined the case before her at length by evaluating evidence to end with the balanced and informed decision. Upon a careful examination of evidence of PWI, PW2, PW3, DWI and DW4 the trial Magistrate was satisfied that the appellant uttered defamatory statement to the respondent that the child she was taking care the appellant was the biological father. Ure husband of the respondent who was taking care of the child was not his biological father. Tbe appellant was the biological father and he was ready for DNA test for proving the same. It was the evidence of PW2 that the appellant told her that he was read for DNA test and even when they were at the police station the appellant remained with the stance that he was ready for DNA test. ale appellant was ready for DNA test and they went for the procedures of DNA test at the Government Chemist Laboratory for initial stages. After the initial states the appellant neglected the process. It was the settled decision of the trial court that the appellant abandoned the process for no good cause. are trial court ruled : "From the foregoing, I hold a view that, the defendant statements that plaintiff is a prostitute and the defendant is biological father of plaintiffs child in public and that he wanted to do a DNA test which he later refused to do, intended to harm the plaintiff. He did this with malice in order to harm the plaintiffs reputation" The trial magistrate rightly considered the matter before her and ended with a correct finding, again I have no reason to fault her findings on the issue of DNA. are fourth ground dies natura death. In the fifth ground of appeal, the complaint of the appellant is premised on the argument that the award of general and punitive damages was excessive. In this ground of appeal, the appellant insisted that the award of damages was high without justification because the respondent failed to prove any critical issue, in essence there was neither defamation statement nor publication. The court ought to consider the factors articulated in the case of Professor Ibrahim Haruna Lipumba in awarding damages. He quoted part of the case which provides; - (vi) Factors which may be considered in awarding damages for defamation include degree or extent of injury to personal integrity, to professional reputation, to one's honours, the degree or extent of publication of the defamatory matter, the conduct of the defendant (tike refusal to tender an apology), and so oN’ In her side, the respondent insisted that all elements establishing the meaning of defamation was proved on evidence, the awards were correct. It was the settled view of the trial court that the successful party is entitled to damages depending on the nature of the case. It is a settled law that award of general and punitive damages remains the discretion of the court upon considering the nature of the case and its gravity. The trial Magistrate considered the evidence of the respondent concerning how she had been negatively perceived by the society as a result of the statement of the defendant. PW3 testified the way the business of the respondent was affected. Tbose factors were used by the trial court to assess general and punitive damages. In cases of defamation, the court consider the personality of the victim and the extend of publication of the defamatory statement. In the present case the defamatory statement was in the form of slander in which the extend of publication was within the family, neighbours and few officials who handled the matter like local government leaders, police force, social welfare officer (PW2). The extend of publication is very narrow. Taking the view that the extend of publication its range was very narrow and the personality of the victim or her reputation as stated in Ibrahim H. Lipumba case (supra) was not demonstrated in evidence, the award of general damages will be reduced for serving the same purpose of justice. Tbe general damages are reduced from VS 9,000,000/= to TZS 4,000,000/= Having said and done, it is apparent that the entire suit was determined based on evidence on record as stated herein before. In that respect, likewise the last ground of appeal has no legal legs upon which to stand. It is also reduced into nothing. In the circumstances, I find that the five grounds of appeal have not been substantiated by the appellant save for the reduction of general damages. Consequently, the appeal is partly allowed to the extend explained above, no order to costs. It is so ordered. Date at Dar es Salaam this 31't day of October, 2024. bun}dIe JUDGE 14 Judgment delivered this 31st day of October, 2024 in presence of the parties in person. ,a RT /8 g Be JUDGE 15