19760625 TZHC Mwanza

L. 7,•' ( J r z::1 ,L.,,. ..L () Cr/IL 10. 264 OP 1975 (PrOfll the deciaior of Ngara District Court at 1gara in C±yil Appeal No 5/75 Before: U.B. I(ajuita, Esc., D.E. & Hya3niyaga Pxintrr Court Civil Qase .90 14 of97) S(uTT PUST-IOO . . ELLPT V1LJJ3 SIMONI Si LIOhYO . . . . . . . . . . . . . . . . . . . . RESTDtT JUDGY/ITT. , LUC-LK]LTGIRi, J.: This was an action in -tarti The appellan -t (he-rain referred to as the plaintiff) sued the respàadent (herein referred to as IN defdant) in the Primary Cdrt at Nyiyaga; Jga District, Olaiming 400 in damages 'or .s1ander There was evidence that on 24/10/74 the defendant reported to he 'Police and the TAIIIJ OfficeHthat the plaintiff was a tbief He alleged that h plaintiff had stolen 16 bunches of banoaias When the defendant was askedJ740410lice to subsantiate the c11eation so that Priminal Proceedings may be preferred against the plaintiff he failed to do so The plaintiff was therefore not prosecutK4 He then comaenced, these proceedings against the defendant to recover damaged as already stated At the trial, the defendant acl&iitiecl mcldng the utterances and even repeated that the plaintiff was a tbief. The Primary Couxt found that the utterances were defamatory and without legal justification. The Court, therefore gave judgonent for the plaintiff and awarded bin Shs. 200/= in damaes with costs. The defendant appealed to the District

Court against the judgCment and decree. The latter Court allowed the appeal and set abide the decreed In doing so, the learned District Mastrate had this to sar:_ Pram the evidence adduced by the (plaintiff) and from what hpq been said at the hearing of this appeal, there is nothing to show what damage the (p1airtiff) suffered, whether in his profession or character, by being called a thief ..... ) The pintiff then brought the present appeal. He still claims Shs. 400/= with costs There can be no doubt that the quoted above, were unforunate. 'Jherere certain e-xcepns wnen it is actionable per se that is without poof of actual damage. 'For refreshing the memory of the District Magistrate, these exceptions are:- An imputation of a Orininal •ffence on the plaintiff; in imputation of existing contaous or infectious disease; i\fl imputation of unchastity against a woman; and (ci) An imputation against the plaintiff in his buainess or office. In this case, thi defendant called the plaintiff a thief. That was an imputation of a a2iminal Offence. The plaintiff was actually auizzed by the Police. In this aituation t the plaintiff did not have to prov& actual or special damage. The slander against him was actionable per Se. In these circunstences, the judgenent of the District Court wa not in accordance with law ... .. . . . It also transpires the tb Pimay .. Court was willing tb award

the pl3i1Tiff the anount claimed by bin but hesitated to do so becnise the plaintiff had not sQut to; quthtify .tho.:domaecb. It none and character.. I tbink again t that Ys a slight juisJilcctio Tho eidccc wac., clear es to the extent of publioaiion and the places whore the publication of the defauatory, words was done. Becies, the dc:ondant did ot in any way seek to mitigate tto donages. On the contrary, end aithougn he was aware of the falsity of allegaions, he proudly adrnitted.m1ng the off enve utteaces and even had the tonerity to repeat them in Court o ilthough that was a pmivileged occasion tlie repetition could nevertheless, be treated as an aggravating aberration. In view of thebioregoing, tbi appeal must of necessity succeed and I alIiit accordingly. . The judgonont and orders of the District Court are set aside. The judntf the 1mctry Crurt is reatoroci with one variation: The laintiff will be paid. Shs • 400/= in damages as o.nally prayed by bin. The defendant will also suffer the costs in this Court and in both Courts below. IdrvANZA, K.S. K. LUGdNIRL 25TH JJL, 1976. . .• r --