20141031 TZHC Dar es Salaam

1 IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL CASE NO. 29 OF 2010 RAJABU MIKIDADI MWILIMA MFAKWENDA ................................................. PLAINTIFF V J THE EDITOR HOJA NEWS PAPER & OTHERS .................................... DEFENDANTS Date of last Order 22/9/2014 Date of Judgment 31/10/2014 RULING A.Shangwa, J On 19 th March, 2010, the plaintiff Rajabu Mikidadi Mwilima Mfakwenda filed the suit against the defendants namely the Editor, Hoja News Paper ~d s.<?_l}goro Mnyonge who are the 1st and 2 nd . defendants respective_ly. At paragraph 4 of his plait1t," the- plaintiff states that his· claim 0 . . . ... . ' -•··-~.·'"<':'~···•"'-:,,,,.,__.,,," _......,,,~:•-~"1•••»v.".'""~'"'r-,-:-"'~"'""!t-'·:7,>• ~...~--'i~,,.,.,,~.,.,-:-.,,~-,,,...,. .,.,,,;;"'.~"""""""1-~·••r"'•'°""'.,;;,,,,,.,.,.;,,.~~~..~;,?--;,"t.~~-"'":~-::"'"':""'~:-..,...,,--:,~ 2 against the defendants jointly and severally is for payment ofTshs 920,000,000/= and that it arises from libel. On 19 th September, 2013, the defendants filed a Notice of Preliminary Objection which is based on two main grounds. First that the plaintiff's case is res. - subjudice because of civil case NO 271 of 2012 which is pending for decision in the Court of the Resident. Magistrate at Kisutu and is based on the same facts. Second, that the plaintiff has no cause of action against the defendants because what was published against him carries the truth. On 10 th June, 2014, I ordered that the two points of preliminary objection raised by the defend an ts should be argued by way of written submissions. Counsel for both . sides to the suit complied with my order. They accordingly filed their written submissions . . _:,· . ·-:: . f . :: . ~;.,~•:;~.~~'.'Z:~Y--~~~f~;;:~~~~~~•~,,,,,.:~~~--:;~:~:>-~~~~~-? ' .'• <•~~r~-~~~,,,·:::~~~}7~~,:?·~~:-✓~•~,i~~i 3 On the first point of preliminary objection, Counsel for the defendants Kings Law chambers submitted that the suit between the parties before this court namely civil case NO 29 of 2010 is res -subjudice as there is a pending suit between the ~ame parties in the Court of the Resident Magistrate at Kisutu namely Civil case NO 271 of 2012 which contains similar facts. They contended that as the facts in the case between the parties before this Court are similar to the facts __ . in civil case NO 271 of 2012 which was earlier instituted in the Court of the Resident Magistrate at Kisutu and is at the defence stage, then the case between the parties before this Court is res- subjudice. They pointed out that in both cases the cause of action is the same namely the publication that the plaintiff is not the citizen of Tanzania. 1'. ,. ·,v.";'::;.-;_~-·J.17',A:'~~";-•,.~~;•J:..·t-·.:<.'"7~~-!'~P..,~...,~~..,..,...,,.1_•.,.._·.e~i,.-,.~~~~~r.'~~-~"1'"~~~)'0o;'~-:.~•~~~~.,•-,·~~~~~••~~"."';--~~~-;.-~,._..,.~~.-:r-'~~•~~~~~t::~~•:~~-~r 4 Counsel · for the plain tiff, Mr. R. K. Rweyongeza submitted that the suit between the parties before this Court is not res- subjudice because Civil case NO 271 of 2012 before the Court of the Resident Magistrate at Kisutu is not directly and substantially in issue with the matter. before this Court in civil case NO 29 of 2010. He said that whereas the suit before this Court arises from the defamatory publication made by the defendants in Hoja News Paper of Friday 19 th to 25 th September, 2008 on the front page with the heading " Kada wa CCM atimuliwa nchini yathibitika sio raia wa Tanzania, apewa siku 90 kujiandaa kuondoka ni raia wa Burundi;" the suit before the Court of the Resident Magistrate at Kisutu arises from the defamatory publication made by the defendants in Hoja News Paper NO ;..T·.A; 570 of Friday 22 nd to 28 th June, 2012 on the front page· ~ith the heading "Uhamiaji CCM isilinde · wahalifu". R.K Rweyongeza contended that the publication that" Kada wa 5 CCM atimuliwa nchini" 1s quite different from the publication that "CCM isilinde wahalifu" and that the two publications cannot therefore be of the same subject matter so as to link the suit before the Court of the Resident Magistrate and the suit before this Court. On my part, I agree with Mr. R.K. Rweyongeza that the suit between the panties before this court is not res- subjudice. I share his view that as the defamatory publication in Hoja News Paper of Friday 19th to 25th September, 2008 1s different from the defamatory publication made in the same News Paper NO 570 of Friday 22 nd to 28 th June, 2012 which is about four years from the date of the first publication, the suit before this Court is not • - u;._ 6 , .... •' ·"' ·-~: -~.:C" -: res- subjudice to civil case NO 271 of 2012 in the Court of the Resident Magistrate at Kisutu which is at the defence stage and is pending for decision. The authority that each· separate publication gives rise to a separate cause of action ~;!~.-~;.~. :.::~,.i.,.,_~~~~.~1;,;,.,.,,..,~:. . ;i-'''~"""':'::'f-;.•:n;~.~-·~~•;,~;"'.~~''.".';"~"i~:"''.;;~c••~··•-;·,.,,.;,;,,,,.,.-,, ..,.~;.,,!'.,•itt:',,.-,;.;,,c.""~""-·;,,;,..,._.,,,'.;..i""',,.,~,;,,-."":'.'f'."..;..,.,,~'<c-'•""~ ..,· ,:-. ' 6 is the English case of Duke of Brunswick v Harmer 14 QB 185. On the second point of preliminary objection, the Kings Law Chambers submitted on behalf of the defendant that the plaintiff does not have a cause of action against the defend an ts as the story which was published against him is a true story. They requested the Court to reject the plaint and dismiss it with costs. In reply to the submission made by the Kings Law Chambers on this point, Mr. R.K. Rweyongeza submitted that the objection that the plaint does not disclose a cause of action is an abuse of the Court's process as this point was raised by the defendants in this suit on 16 th July, 2010 and a ruling was delivered. · On this point, I agree with Mr. R.K. Rweyongeza that as the question as to whether or not the plaint does disclose a cause of action in the suit between the parties was dealt with ~-.. ~i. ~ >· ;_·.. ;~:~;:= :;~: . . •.. --~·~:-,. ,:·,(.~r.:.-··:t:·· ·:--_, .-: _·: - ·: ___ ,. : 7 \, by this Court Juma, J as he then was in his ruling delivered on 31s t October, 2011,raising it once again is an abuse of \ the Court's process. At page four of his typed ruling Juma, J held as fallows and I quote: - << I am satisfied that the plaintiff has disclosed a cause of action contending that on 19th September, 2008, the 1st and 2 nd defendants in the Newspaper titled Hoja published a defamatory statement against him to the effect that « Kada wa CCM atimuliwa nchini yathibitika sio raia wa Tanzania, apewa siku 90 kujiandaa kuondoka, ni raia wa Burundi;" Having agreed with Mr. R.K. Rweyongeza that the question as to whether or not the plaint does disclose a cause of action has already been decided by this Court in .. •.·-r~:..;.".""-'""'>.<,,-, ~;"' ,>;S:•,..,·...,,,,y.. i ;:;i.- •••• ~ ..... :,,,.,.,.,.,., ,.,.,,., • ~--.•: ,,,.~;..,.,,.t,,;. .,:..., .·'." ,.....-.,1;:.,,i;~.,,,, :.:.,,.; .~••••. : ·,,,, ,,.•:.;,,.;;:,:~--~"~~•;-c,..c,, ,~,;,;:."ti;';o:~,.......,:~7·"'·~:"'"':'.""'"'-~"'""'.""r:""'""'i.;,~....,_,.,,..,~-·~f 8 ..... , ' the positive, I repeat to say that raising it for the second~ time before the same Court is an abuse of the Court's process. In the final analysis, I overrul~ both points of preliminary objection raised by the defendants against the suit and I order that the suit should come for First Pre-Trial A.Shan c JUDGE 31/10/2014 Delivered in open Court this 31 st day of October, 2014 in the presence of Mr. Nehemia for Mr. R.K Rweyongeza and in the absence of Mr. Makene of Kings law Chambers. ~q /\. Shangwa, JUDGE - 31/10/2014 '. l