20150226 TZHC Dar es Salaam

. 1 IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL CASE NO. 156 OF 2004 TANZANIA UNION OF INDUSTRIAL AND COMMERCIAL WORKERS ........•................................ PLAINTIFF V 1. P.RB. HILL.••..•..•..•..•......•.....•......•..•..•.....•......•. .,1 ST DEFENDANT 2. SECURITY GROUP CASH· IN TRANSIT (T)l:TD) ... _~•-~··········~-i:.··························2No DEFENDANT Date of last Order 7/11/2014 Date of Judgment 26/2/2015 JUDGMENT· A.Shangwa, J This suit was presehted for filing a long tim~ ago on 18th October, 2004. It was filed by MS M.A Ismail and Company, Advocates on behalf of the plaintiff Tanzania Union of Industrial and commercial workers (Tuico). Due to factors apparent on the face of the ' . . .\ •. - ,,, .c- _"'"" .~· ·..... .-:· .. t., .. ·• '·· 2 record, hearing could not start as soon as if was filed. Instead hearing started on 14th March, 2008 and was completed on 23nd October, 2014. The 2 nd defendant closed its defence on the said date. Final submissions by counsel for the parties were filed on 4 th November, 2014. The mother of this suit is an official letter dated 10 th August, 2004 - exhibit PI written by the 1 st defendant Mr. P. R. B. Hill to the Principal Labour officer, Tanga and copied to some officials. By then, Mr. P.R.B. Hill was the Branch Manager of the 2 nd defendant Company namely Security Group Cash in Transit (T) Ltd at Tanga. The plaintiff alleges that the aforesaid letter is defamatory and prays for general 3 damages of I billion Tanzania shillings. The contents in .that letter which· the plaintiff considers to be defamatory are listed at paragraph 4 of the plaint. They are as follows:- 1. That the plaintiff has penetrated the second defendant by illegal means and has carried out clandestine recruitment drive without knowledge of the 2 nd defendant. 2. That employees have been issued with membership cards by the plaintiff through misrepresentation and or false pretence. 4 3. That the plaintiff is undermining and discrediting management as a result employees have become undisciplined and there is likely to be unrest. At paragraph 6 of the plaint, the plaintiff states that the said contents in their natural and ordinary meaning meant and were understood to mean that:- 1. The plaintiff is unworthy of its name and the refore incompetent to be a trade Union. 2. The plaintiff is fraudulent, hence a criminal and the refore unfit to II. .., " \ 5 lead and or represent workers at workplace. The facts which gave rise to this case are as follows:- · The plaintiff is a registered Trade union. One day in June, 2004, four of its officers went to the 1 st defendant's office and told him that they wanted to unionise the 2 nd defendant's employees and that the majority of them had signed to be members of the plaintiff Trade Union. A hot debate arose between the plaintiff's officers and the 1st defendant about the recruitment of the 2 nd defendant's employees without prior consultation with the 1 st defendant. Emotions reigned. The 1st defendant asked the plaintiff's officers 6 to go out of his office. They resisted saying that they had more right than him to be in his office as he is a foreigner. Thereafter, they left. After some few days, the 1st defendant was summoned by the Tanga District Commissioner to his office on 27 th July, 2004. Other officers were also summoned by the District Commissioner to attend his meeting namely the officers from the plaintiff's office, Officers from CHODAWU Trade Union Tanga branch and the Principal Labour officer at Tanga. The 1st defendant obeyed the summons and went to attend the District Commissioner's meeting. He was accompanied by one William Jambia and John Temu, his personal assistant and Mr. Mnyazi from Dar es II, 7 salaam Head Office. The reason for the meeting was to resolve the issue as to which Trade Union was the correct Union for the security Sector. Was it Tuico or CHODAWU? At the meeting, the 1 st defendant explained as to what happened in his encounter with the plaintiffs officers in his office. The Principal Labour officer told the District Commissioner that the correct Union to represent workers from security groups is CHODAWU. At the end of the meeting, the District Commissioner left the matter in the hands of the labour officer. On return to his office, the 1 st defendant reported to Mr. Martyn Alderson who is the General Manager of the 2 nd defendant about what had transpired in the ,... 8 meeting with the District Commissioner. The said General Manager discussed the matter with Mr. Mnyazi who in turn drafted a letter in Kiswahili to be sent to the Principal Labour officer at Tanga and left it with the 1 st defendant .This letter was translated to the 1 st defendant who is a South African. The one who translated it to him is William Peter Jambia. The 1 st defendant communicated with the General Manager at the 2 nd defendant's head office about the contents of this letter. The draft letter in Kiswahili composed by Mr. Mnyazi was not produced in evidence. The 1st defendant then wrote a letter in English to the Principal Labour Officer dated 10 th August,. 2004 exhibit Pl in which he made some comments and observations. One of the observations he made was . 9 that Tuico was not the correct union for the security sector so as to· represent the 2 nd defendant's employees in labour cases. This letter was copied to the Tanga District commissioner, the secretary CHODAWU Tanga Branch, the Secretary Tuico Tanga Branch and the General Manager Security Group Dar es Salaam. At the commencement of hearing this case, counsel for the parties agreed to the following issues:- 1. Whether either defendant published a defamatory letter, 2. Whether the Plaintiff has suffered 1n1ury. ... 10 3. Whether the contents of the letter were true in substance and fact. 4. Whether the publication of the letter was protected by privilege. 5. To what reliefs the parties are entitled. On the first issue, I am of opinion that neither the 1st defendant nor the 2 nd defendant did publish the letter in issue exhibit Pl. This letter was simply written by the 1 st defendant to the Principal Labour officer Tanga and copied to the District Commissioner Tanga, Secretary chodawu Tanga, Secretary Tuico Tanga and the General Manager, Security Group Cash in Transit (T) LTD Dar es 11 ·Salaam. There is no evidence that this letter was published in any form to the public within and outside the country. The word publication is defined at page 584 of MITRA'S Legal and Commercial Dictionary 5 th Edition to mean inter- alia, the issue of records to the public in sufficient quantities. In this case, the persons who read it are only those to whom it was copied. It was copied to the District commissioner Tanga, secretary, Chodawu Tanga, Secretary, Tuico Tanga and the General Manager, Security Group Cash in Transit (T) Ltd, Dar es Salaam. It can be concluded therefore that as this letter was not copied to so many people, there was no publication in the real sense. 12 Another question which is involved in the first issue is whether the letter in issue is defamatory of the plaintiff. Mr. Kalolo from Ismail and Company Advocates for the plaintiff contended that the letter in issue is defamatory as it accused the plaintiff Trade Union to be a criminal gang meant to create a state of misbehavior in a working place and to be incompetent to represent watchmen. On the other side, counsel for the 1st and 2 nd defendants argue that the letter is not defamatory of the plaintiff because it contains the truth. I have carefully examined the contents of the letter in issue. In this letter, the 1 st defendant appears to be informing the Principal Labour officer 13 Tanga that he has problems with their former employees of Security Group Cash in Transit being represented by Tuico (plaintiff). That the defendants do not accept Tuico as being the correct union to represent the Security sector. That Tuico has forced itself on the management by deception, stealth and inappropriate conduct. That Tuico has penetrated the 2 nd defendant Company by various illegal ways and that it has carried out a clandestine recruiting drive without the knowledge of the 2 nd defendant company. That the 2 nd defendant company's employees have been issued membership cards by false pretences. That Tuico has embarked on a scheme to discredit and undermine management which has caused a decline in discipline in financial 14 loss. That the status quo prior to Tuico's involvement be maintained until such time the decision concerning the outstanding dispute between Tuico and Chodawu is made by the District Commissioner Tanga. That the defendants have no objection to chodawu representing aggrieved employees in the interim. That the 2 nd defendant has no confidence in Tuico representing aggrieved employees. That the dismissal of employees alleged by Tuico to be unfair and discriminatory were justified in law, well documented and supported by good evidence. In my op1n1on, the letter in issue contained grievances by the 1 st defendant against Tuico and it ,., 15 contained the 1 st defendant's request to the Principal Labour officer Tanga not to proceed with cases of the 2 nd defendant's employees represented by Tuico until the dispute between Tuico and Chodawu as to which one of them is a correct Union to represent the watchmen is resolved by the District commissioner. In my view, such a letter cannot be said to be defamatory of the plaintiff because it was not intended to expose the plaintiff to hatred or contempt of any kind except to show that the 1 st defendant had no confidence in Tuico for representing the 2 nd defendant's employees in labour cases and he gave reasons for his lack of confidence in it. The grievances which were made by the 1st defendant against Tuico were subject to 16 investigation and decision by the District commissioner Tanga. I now proceed to the second issue. On this issue, I am of opinion that the plaintiff did not suffer any injury as a result of the 2 nd defendant's letter exhibit Pl addressed to the Principal Labour officer, Tanga. Its reputation in the mind of the right thinking members of our society remained intact. There is no evidence even to show that as a result of the letter in issue its offices at Tanga were closed or that its members shun away from it. The second issue is therefore answered in the negative. .. ' 17 On the third issue, I think that the truth of the contents of the letter in issue were subject to investigation by the District Commissioner Tanga. As already said, the letter contained grievances by 1 st defendant against Tuico. There is no evidence on record to show that the 1st defendant's grievances were investigated. The District Commissioner remained silent. The labour officer promised to assist the 1st defendant in his problems with Tuico but he left everything in the air. This means that the grievances by Mr. P.R.B. Hill against the plaintiff were seen to be true and of no need to investigate. This disposes of the third issue. As I have already said, the letter in issue was not published. Therefore, on the fourth issue it is of 18 no use to comment as to whether or not the publication of the letter was protected by privilege. On the fifth issue, I am of the opinion that the defendants are not liable. Therefore, the plaintiff is not entitled to any relief as claimed in the plaint. For these reasons, I dismiss this suit with costs. ~ A. Shangwa. J JUDGE 26/2/2015 open Court this 26 th day of February, 2015 in the presence of Mr. Mlawa for 1 st defendant, Mr. Nyangusu for 2 nd defendant and in the absence of Mr. Kalolo for the plain tiff. ATh·~a.~ JUDGE 26/2/2015