19940924 TZHC Dar es Salaam

\... L\ £:, ~::t . -Wi c_ If ' CIVIL CASE :iJOo 100 OF 1992 · Vorsus PLATI{Til"'Y, ~s rn TAJ'.TZAMIA ITAL W~ ::::ZTROLb"1JII!) · IlEFI:-1IIli0 COJ:~?.lllJY LU,1!9 · . : : s: z: s g i :DEFLThlDANT MS, OFFE 1 J: The :.:>Hd.11tii'f wa~; c1.1~ in;;1oycc of tho d.ofoi'ld.ant compa11,Y in. th~ capacity of Ifoad of Tb.c '.':: :..::-b:u.::10:1ts Bcotion except for tho pe:t-ioq. bGtwoen '2.9/1/90 and 7/ .2/90 when ho was o.lso an Estate Offio0r foF tim . . ~s o.n <;s:i.:2.~cc. of:fic0r his duties i1'1oludod ad,Ll~niste:ping ~he provisions of frcr: 1.1 wa.tc1• to the dofci'ld.ant• s Houoin.:; Estato at Msaeani, D~ es Sa.laa·.1• I-Io :iad .a,n arrar1cor.1011.t to that off ect w;Lth 0110 M/S Nahd.i Eb:1tcrprisos Lir.:itod (sco ai.'lllOXlli'o "D" to tho r,iaint,. On 7/ 12/90 his appointme11t as a:1 r:sta-tc offlboor was cancelled as per lctt0:L" ref. no, IC/IiID/109/90 of tJ·:it dutc (o:d1,p.;1,), In that lottor ho was ;required to ha.i'l.d over to tho C ·mpan;;~ all tho thi.11.gs he he4 as Jl);Jta.to o:l:';ficet, On 28/12/90 another lot";or (:r.cf. :10. 175/90/iIA.NP ~ . p,III) w~s wrHtc11 to him wi1ero two tJ1i ,:;s ,-m:rc r.llococl:- (:i,) Tha~ whon 1:·mcl::.::c; o~rol' to 011.0 llir.o Ngayonga some coopany 1;1.ssots wgioh wore in tb.e ccnYhrd.:1.0:-..: ;101.1.so (Tr.Ell villa,g0) und.or his control wore not given out, (ii) That avore.f.;c conf:l1.r,1;:/.;io:1 of wo.tcr a.t tho TI?Im. village was 40,000 littos par da:7 h·'.t ttv.1t fj~o,.1 -t;;.lo j:Ooords of tho nontb.a of Aueust 1990, September 1990~ October ,990 anc1. lTovonbcr 1990 thoro was ovid.etico of exoessiva sui°lply of wntor. He was th0roforo required to .:;ivo ai: account of (i) and (ii) a'bovo. :U1 response he wrot0 back oi{ 31/12/90 giving explanations on the cpnpany asaets and tl10 oxossivo 0up:1ly of wo.tor (soe exhibit p.iv). The ¥.ll;lJ1aci..,. ng Dir,eotor of· the d.of011clant com;1al1j1 wrote back to hin ori· l/1/91 vicic his letter to that offoot rof" 1'10. 02/!m/91 (soc oxh. ll•V• ). Frcm the tone ·of tho '.l.0ttcr it is clear that ti10 plai11tiff was not believed. in his explai-iations and hence the .btim~:tion therein that tho mattc.r would. bo brought to tho noard of Dihr0otors for discipl:iJlarY action•. · . ,J 2 .... It is understooci from tho co:1tonts of cxh.p.vi that ho wa.s thereafter called to attend a m00ti:1c of Tho Appointments C01:ir,1i tto~ on 20/6/91 to explain _further tho chu:rc;os raised against him. IJ.1 that letter (exh.p.vi) ho was infornocl categorically that the r:ia.iw.goment had fov.nd. him guilty of the raised cliaruos and was satisfied -.that ho wa.s rosponsiblo for 11 tho wa.t0r embozzlot\lont and the disap·1?0arru1.c0 of tho company as~ota. 11 Re was thorcforo inforr.ied that tho I-ie.nagooont had docidod ·to toruiimto· his so;'Vices but taking into consid ·)ration his 24 years service with tho Corn;Qany .. he was being given the _option : or a.n early rotiror:iel'lt with ful.i boncfi ts.._. By his lotter ref• no. AfiTV2/31 dated 1/7/91 ho optod for OE.lI'l:Y' rot~rcrnont with full benofi ts bogin::.1bc ,,1d of So:f)tembor that sar.10 year. Il1. tho lotter he rei tora.to·a that ho h~.c'l. : .ot coi:1,:1i ttod tho. allogod 11 drimos;" :l'!J1.d tho.t since 0 the ca.so had caused hin ;-.mch ·ontal suffering and cr.ibarnssno11.t ho hap, no oltornativo but to ac~o~::-t -':.1 0. ,'.);?tion :for tho oarly rotiromoni;, Wi. th tttLi 1Jcn~ 1 1 That roquast \fas r:. ;coyl;r.:,.·; ,Ji· tho· rncu1<)cror.1ont on 8/7/91 a.s po;r ;Lotta~ to · :f'its him ref, no. 76/91/P'rJP,.S to i;hrri;- offcct (oxhop.viii) • .A.coord.ing to tho plai: ,t.:i.:f:':f:' tho (lnf'r:u:mtory words lie in tho typo .-;ri tten lotter of 28/12/90 (oxh.:poIII) whoro it is publieh<hd. as folloW$1" .. (a.) 11 It has 1Joc~·1 discovor_od that on tho day of b.andinP;; ovor to Er~ Hc2.yonda sot:10 oompa..n:,· assets wh:i,.ch wo;r:-9 in tho contct:bor House (TI':Ifil vilJ.a:l;-o) undor -:r.our control woro not c).vo11 auto Tho ¢.ssots in q'l).01:1t;i.on a:ro; .. TIJ?Ea l\1TI1ID:JR 1~,1,_151:im pmspn:p.•TtON 4781 Container Shelves TD 1 1668 To.blo ama.ll 1 3832 FQrmica. cupboardi 1 _./ 4629 Chos·t o:t; d.re,wor w:i,th 5 drawers 1 3362 Side Doaxd 1 ,.,,, 3874 Study cloak 1 -~ 4382 . Dodsidc tralJJ.o 1 3359 Sofa two seater 1 (b) _Secondly, nvora,z-o consur:i]!>tion of wato3' at TD?ER Vill~o Jc;r day is l_i tros 40,000 and this is tho full capacity of tho '11c1nkf but froo tho records of tho supplier it is cVidcnced thnt for the follo·wing r,1onths oeaoooooo you had. roc~ivod .oxQessivc wa.tor •• \ •.~. ·:·t ;,. j..': ,,-:: ~. 0 • ~ A A It is in the plainti:ff 1 s case thd tho above .words in thoir material and (. ,~rd.ina.ry moa.nine racant ai1d wo:r·c understood to ncan that the plaintiff uas gull ty of thft and onboz;7.J.,~r:10:·:c i,, co;1s:nr1racy '1-ri th tho s-µp1)licr. And. . .. . ;t:urtll..0.I' t'-. . .. .,;_._ ) u {:,T0<..."G~(Y lll his crcC.::.-t )• , " 3 .... j.nto hatred, ridicule and coi1tG17l]?tA He is thorcfore olaining from tho defendant, inter alia, Gonora,l dtu;iaeos of not lcs_t; :than_ 10,000,000/= and spcoiaJ: damages amountb.z to Shs, 5;573 9 339/=• At oommcncemont of hom. i21t~· the issues tl1c1.t w-oro fraood and ag.cocd Ul)On 1 by tho parties were as followsz- (i) Whether or 11.ot tl10 lotter complained of was defamatory to tho plaintiff • . (ii} If tho answer to (i) above is in the affirmative is tho defence of privilege available to tho defendant. (iii) Was the plaintiff's . , cr.iploymont with tho defendant terminated unlawfully e,11d without C,'Ood cause. (iv) Was tho ]_)lain tiff on.ti tlod to tho hcno:f:'i ts and alloirancos olai1;1od in para 13 of tho plaint. ( v) What rolio:fs if a:1-:f a,,;~o tho :>a1 tios onti tled to. 1 The first question I bwo to dcd.do is whother tho lotter ooupill.a.incd of was defamatory to tL0 )labtiff. As this Court hold in tho case of .S.a.idi Ali Maswanya v A:fric:::n Tiv~yor and -Trade (!?ublications) Ltd. and others ~1 TLR 221: - Kfaanga, Jo (aG ho thon was)a defamatory statcraont i-s 0110 which tends to lower a :~)01•son in tho osti□ation of r~ht thirJci11g r:iomhors of the society gonorally. Also to amount to dofama.tion tho publication is <:ommunioation by tho dofend2.nt of r:iattcrs defamatory -of tho plaintiff to a third party. -In tho words of Lue;akinsira J. i11 tho ca.so of P.M. Jona.than v j,ihurnan Khalfan 1280 'l_:iR- no. 175 "there rnwt be a :cocipidmt of .lfi;1e inforna Uon himself not being tho l)laintiff who must construe the infornation not only in a. defamatory sen.so 1mt also as published. of and conccrninc; tl10 :.:>lar- intiff." In tho instant case it is comJon ground tr..at the wol!ds· in the lot ter com_plainod of were 1)1i:)lishod not onl;f to tho j_,laintiff but also to tho other people mentioned b ~~r.i.:ra 6 of tho ?la:Lnt. According to DW. 1 Mrs. J.P'J.ora Njwa.ha. - the :;?Crso;i;1cl Ea.:.111c.;0r to -t~10 defendant conpa.ny all those poopl6· -were enti tlod to know nbol:.t· tho said ldtor liy vir.tuo of their positions in tho conpany except one Nr. m.,1ja who wns at tho 1;i.ato;rial time raoroly assist !ri..g as secretary to tl10 A,z,. Chief Enginoor ·in tl10 absence of tho actual secretary. In ny oons}derocl .OIJi'.:',.ion, tl10 words i,1 thci!' ordinary DOanih& were capabl0 of boine 1.1.nclorstood that the plaintiff was guilty of theft and c:nbozzlomcnt. In othcj~ words any rigt~t thinkinc r.i~mbcr of the socictjr uould in my view, be capable of thinking that tho pla.int:i.~f was actually a thief, Such imputation is no d_onbt so:cious and I will have no hesitation in a.11Sitoririg this first issue in tho affirna.tivc noro so since as shall be shown horo1.mdc~ the pu1)lication against t:1c plaintiff was after all, on tho availa1)lo evidence not entirely truo• The second quest.ion is wb.othc:r tho dofoncc of privilege is a:vailn.blo to tho defendant. .Again !en the words of Lugaki~i:ra J. (uhich I fully sul)scrobo to) in tho ca.se of T ·, - •• '· ,,,.- -~ ""' be called in aid w11011 tl:io occasion is used honestly :=md without indirect . or malicious notivos. 11 Tho law is also clear that the burden of proving malice lies with tho Jlaintiff •. In tho instaht casei it is my view that tho plaintiff has discy1argod that dut;y. · This is ovmdoncod by tho fact . . that oven after offorinc; his explanation (which was reasonable j_n i'JY :view) rogardinc the asGots and tfro oxcossivc water yet again tl,e defend.ant was reckless in rcpoa:ci:.,::-; tho d.ofanatory statoraont·s oyidcncod i!1 tl.10 tone of his letter dated 3/1/91 (Exho- Po-Vo-).. .I~ then comes_ out clcarl~r that tho defendant's t101:1duct was actuated by □alico a!'ld tho defence of qualifi · ed priVil ego would 21ot, i,1 r.w view 9 1)c available •. The· other issue is whether tho plaintiff':e employment with tllo defen d.ant was terminated uitho,1t good cause and unlawfu.lly. I realize that in doaling with t:.iis insuc I will have to rely only on tho infornati 011 pa.do available to tho Court. I say so because it appears on a natter . . liko this one there CYdght· to have boon producod further docunonta1.~y evidence regarding tho plaintiff's j;crms of o1'.1ploymont. One uould have expoctod production of vi t~l d_OC1.!,':lC11tS rolo. ting _to hi·S. contract of service and how· it cou.L:l be tcrninatocl etc. Uo such information hawcvor· was forth-coraing. In c.:v cas,o, on tho ':vaa,lablc evidence, BY answer to ~ this issue will ·ho in t:·!.O affirnativoo To being with the assets, 110 cogent_ evidence Wctr~ i,1°06.. uccd to prov8 tlmt tho assets said_ to be missi11g were over banded over to tl10 ;_llafotiff' in tho first place. How then could ho be hold 1'0G:_:,o,1sihlo for a:ssc·ts in which tho~c is r;o proof that he was handed thou <1t -~i':.10 of his now ass:j.gmaont as Estate officer? In the a,gsenco of such vi taJ. infom.ntion, one may ·actually 1)o loft ui th ·no other choice cxcc;:,t ·to 1Jolicvo tho version given by tho plaiifltiff that at tho material tir:10 -t>.o container alloo;od to have contained tho :;1iss"ing - . i terns was actuallJl OE1J;:>t:, and that all tho i to.ms allegod to have boon in that container wore fon,.,d to have boon in other h;uses a:na./or w.rtttCl'.l off~ I realize tha·t thero wore inventory shoots produced fox the periqds June 1990 and Desembor. -1990. In r.zy view those shoots ai--o highly suspect since they do not bear tho signatures of tho occupamts of tho houses or 0v0n of ·;;ho ::_)o:-csoi1 who carried out tho inventory. Rcgexd.i11G' tho cxoccssivo water- it ::tJpoars from tho available evidence that the plaintiff was not involved in any si1mistor deal w~"th· tho company contracted to sup)ly Ho:tor to tl1'J Tipor Villa.go. Tho _plaintiff rsuvc a reasonable account of 1t1at actually used: to happen i.e.) water 1fould -·. bo supplied as and whe1.1 noodocl& While there is no oy1do_ncp of a-1ty com- plainti fror.1 any rosido:1t of tho villaGo ro..-;arding tho suppiy; no ovidonoo was forthco1~1ing oithm: to sh0w tlm t any of i;ho · deli vcrios recorded were never supplied. !!1 thn-t: regard it was certainly Ul'.l-fair to lhold tho plaintiff "res)on:::d-:Jle for tho oxcessiv.o 1rator1 In the light of tho above, I will SP.:f ~✓- nay of ropoti tion ;.that the -plaintiff's mploymont was tornin::i.tod unlawfully a.nd without good cause~ I St'J.y ~ was terminated bocau'3c j_i; .; c-: ,,, - -~7 -Pron +.bo ov:;,·>:·-r-. ~1...-Lt lie hnd 110 ,ller o---d,:. ~ )"' . vJ~ i- 5 Tho fourth issue is on the benefits and allowances claincd in para_ 13 of the .plaint. Thcs·c claims a.p,;,ear in the form of special damages which in la:w ha.vc to proved strictly. On the oVidcncc I am satisfied that the plaintiff proved that he was o:.1ti tlod to such bencf_i ts and allowances. IIc was clee..r that was what ho would l1avc bc0n entitled to at tl:e cndo of service if his employment hadn't been terminated. These claims in my viw - now from the broach and they are neither remote. Tho plaintiff is also claimL"fJG general damages of not less tha.'1 Shs. 1q., 000,000/=• Determi11i11[s · ·what a plain~iff should be a.warded as c;cncral damages is certainly not an oas:7 task to do. In doing so however, I will happily be guided by tho prdmc:i.;.:,le la.id down i11 Ma.swanya. 1 a. case (supra) :that . . "in assessing damages.for libel, -J;hc court will take into account factors ·such as the status of the plair:.tiff, the extent of tho circulation of the publioation a!ld the conduct of the dofondant." It is not disputed that tho plaintiff held a fairly senio:r riosition with the defendant company in which1 i11 my view, he might have comrna:1cLod some co:1sidorablo amount of respect. from his work raa.tes. I note also thD t he w-as a long time time employee haVint; been employed since 1967 a.s a 11ouer station shift supervisor and then climbing up tho ladder by way of :r.1ror,1ot_ion to Head of Instruments _of T~10 Maintenance Department. I note fu.rthcr that, a.s earlier stated, the dcfo11d.a:1t was reckless in dealing with tho plaintiff. Yet agaL'1 I take note however that tho publication was not circulated to many other :people knowin[; about it was rather remote. In the totality of all tho abm.,-c, I think ·11owever that tho s·ilffi claimed is. 011 tho hie;h side. In my view an award of a sum of ,,Shso 21 000 1 000/= in general da.mages would meet tho jus-i-ice ot' the matter. In tho result this is jti.d,_5mc11t for tho _pihaintiff as prayed, save that he will have Sha. 2,000,000/= only as general danagos. J. llo MSOFFE JUDGE. Order, Case· file (with the jud(;'i.',1ont) to be sent to Recistrar H:£gh Court I I Dar es Salaam for delivery -of tho jud;_,,cnen t to pa.rticso J. H. r,'.iSO.i!'l<'.UJ JUDGE. !,. 24/9/94.