20161101 TZCA Dar es Salaam

.. ' ... IN THE COURT OF APPEAL OF TANZANIA . • • . • ~· ; ': i. . AT DAR.ES SALAAM (CORAM: MJA.SJRI :l.A~, MASSATI,J.A.-, And MUGASHA, l.A.) CIVIL APPEAL NO. 90 OF 2011 Tl1E MANAGING DIRECT:OR.TA~ZANIA-BRl;WERIES LTD ......•...... APPELLANT:·--t·J. :.·; . "···•\ .--~\. VERSUS 1. BONIFACE KAKIZIBA \ . ., . 2. JOHN ASSENGA -tD ■■••·····~---·····~-~-•••• ~ •••••-•••••••••••••••••••••• RESPONDENT.S ~;:\_.:'\:·•.· _ ... :. . : :., · ~ .J (Appeal from the .d~~ision of the High-Court of Tanzania ; ·, · .· .. :. :_· •.. ,, af·bar es Salaam) . . . · . ,,....,.. ,.. _. (Shangwa,l.) _ . .... '' ,, . .. . . . 1 Dated the 4 th day of January, 2010 In Civsi Case No. 28 of 1995 JUDGMENT OF THE COURT 18th May & 8th_ November, 2016 '•·.··•!: ... MJASIRI, J.A.: .. This appeal arises from the decision of the High Court sitting at Dar es Salaam (Shangwa~ J.). The background to this case is that following the, :.. -: : , · publication in the Daily News and Uhuru newspapers made on August 6,. ··, ._ . 1992 of the statements of the then Managing· Director of Tanzania .· ·: . Breweries Limited, Mr, Arnold Kilewo.whic~ we're alleged to be defamatory 1 against the appellants/plaintiffs, a suit was filed against the -Managing __ · · . Director. ·----- . f;;--:_._,·. . The first and second respondents Boniface Kakiziba and John- . - Assenga together with Gabriel Mosha were employees of; Tanzani~~ ,· · . - Breweries Limited. They were terminated from employment or1 July 30;._ · · : t=- 1992 after it was alleged that they had sold five tyres belonging to the~:, . " . . company on the pretex that t_hey were defective. · Following their. -·. - termination, the Managing Director called reporters from the Daily New~- • ;, . · 1 : L-. and Uhuru newspapers, and informed the said reporters : that the"-.' respondents sold tyres belonging to the company and misappropriated the- . ·' · · · money paid to them. Copies of the publications in both newspapers werr:r-. tendered in Court as Exhibit Pl and P3 respectively. Gabriel Mosha died·· 'llt before the suit was heard. -'~.- ,l----- f=:-- j; Aggrieved by the termination, the respondents appealed to th~. L. Labour Conciliation Board, and their appeal was successful. The appellant~ . · appealed to the Minister for Labour and Youth Development. The appear: was unsuccessful. The Minister confirmed the decision of the Labour- 2 ,.,. ·~ Concil~ation Board and oldered·that the respondentsibe reinstated (Exhibi~~ ·.' P2). However their reinstatern~nt was. bri~f ~nd the respondents wer~ , . . . ' . • ; ._ t • !- subsequently retrenched. The :: appellant refused · to apologise for th~.. '. statements made . to' the· reporter"s -· pub(ishecl ,in·· -·the . newspapers:; <.·· .· ·:;-- ·Consequently the resp,onq~nt~ filed ·a suit for defamation in the High Court·.:: ... •'· .. . -· seeking general damag~s ... of..Sr.is. ,?0,099,000/='. The respondents wer¢~: ·; '. • ,, ,. • ,,·•• a • • , '! ; ~- :~ : . successful in the High Court hence the ap.peal tothis Court. ~. . •:,··· .· .: .: ":-·:• ·... ., The appellant presented a five-point memorandum of appeal which -i~ r. reproduced as follows:- .l. The learned trial Jpdge_ e.rred in law and infact inhold_ing. that the words quoted in the Dally -News and· Uhuru newspapers do reflect the correc( infonnation given to reporters by the co C: defendant Company's Managing Directo0 Mr. Arnold 'Kiiewo while there ···was ··;o evidence prdduced'to ptove such allegation. 2. The leai-nedtr/al"Judge eried in· taw and fact in holding/hat the words complqined of were ·defan1atory without any proof as required by law. 3 - .I • •• 3. The learned trial Judge erred in law and fad in not finding that there exist a defence of fair 1 comment . . 4. n1e learned _trial Judge also erred in-law and ·: fact "i-n awaiding the respondents . Tshs. i 20,000;000/~ each . as general damages: without any . proof ;, . .~ that . they . sufferec/ . an injury _ of their reputation as a result of the alleged . publicat/on. 5. ·rne learned trial-Judge. erred in law in relying orr the principle that imputation of criminal . _.offence is actiqr,ab/e perse while the a/jeged in1putation has not been proved. At the _hearing of the appeal the appellant was represented by Mr. Rosen Mbwarnbo, learned advocate while the respondents had the services. · · -• of Mr. Jethro Turyamwesiga, learned advocate. Before going into the merits of appeal,· Mr. Mbwambo argued that the High Court haq no jurisdiction to hear the case. He made refere~ce to· paragraph 8 of the plaint, where the respondents only claimed for general-· 4 damages of Tshs. 20,000,000/=.He. relied on the case. of Tanzania - · . China Friendship Textile Co.:Ltd·-v- Our ·Lady of_,Usambara Sisters'. · (2006) TLR 70. . ~ ·' ..•. . .. . . . : , ·. .. . On the defamation claim, Mr. Mbwambo contended that defamation ·... · . ·-:.,.:. . ·- . ' .... was not proved to the ~equired .·standa.rd. The responde.nt .did not call any:, ... . : . -. : ;;... : . . I' - -- witnesses to prove that their reputation had been injured. Their complaint . ·-: .... : •,,.- :. : '·· that their reputation before their friends and ·family was tarnished and that:··.· they could not secure ajo_b . -- had .. _ no ·-· ,, . ·.. basis ..__Mr ., . .. M.bw,ambo . . , . .,_,. . relied on the case:··'.· ' ,. of K. Hassan v l{ithuku and Chali (1985) TLR 212. He stated that" in <. ~ .· . ···" Hassan's case (supra) in an a'ttempt to ·p~ovethafhis reputation had b~en .. ·~:-::· :,· ... · .... ~ injured, the plaintiff featured the evidence. of neighbours and relatives to .. prove.that. This was not done·-by:the respondents.··,.· .. -. ,_ , . Mr. Turyamwesiga ,:on'.'. his ·part. submitted that the argument on pecuniary jurisdiction has ·ho' b~~i~·. ffe cont~nded· th~t the cir~~mstan~es in Our Lady of Usambara Sister's case (supr~) are distinguishqble from .this case. In that case . specific'. damages .. . . . , werE: . pl_eaded. . in the plaint which . ~ vested jurisdiction. In the instant.case>-specific damages we.re· not pleaded.·" . 5 Only general damages .w~re pleaded. The High Court had rio jurisdiction,--·· . . '. . . . . . .· . . . ' as at that time the pecuniary jurisdiction of ·the High<Court :was Shs; . . . .·. . . 10,000,000/=. Mr. Turyamwesiga submitted further ·that the evidence of the respondents was suffici~tit, despite. the -absence of ·witnesses as there.· · ·· , ·· ,, . is no requirement for a particular number of witnesses. Defamation in the.< . . ' . form of slander is actionable· perse; The Managing Director was the orie: · ·. . .. . .. . . . who should have come to· court to refute that he was not responsible for· · ::.·, : .:'. what was published in the newspapers. Mr. Kilewo, however did not testify.·;;: ·.·.: -··: '._< : In paragraph: 7 of the~ written statement of defence he admitted to have · ......-, : ,-··, ·:·, . ·_. · received a letter of demand and stated that. he·. had no duty to apologize. - : . Mr. Turyamwesiga submitted that the appeal has no merit and should be dismissed. -. . . We on our part having carefully reviewed the evidence on record, the submissions by counsel, would like to make the following observations. The··'.··· main issues for consideration and determination are as under:- 1. Whether or not the High Court hadJurisdiction to· hear the respondents suit 2. Whether or not the respondents -were defamed. 6 3. Whether 'the . award · of .'?Jamages tc/ -· th; respondents -wasjustified. ,- - · . .... .. . ... ... . . I • ~. ·- We shall commence with the .. issue of jurisdiction. . The- - .. ~ respondents/plaintiff -filed a suit for defamation· in the High Court. Thei.. •_:c:.::,.:.,· .'. _·.--: . . :- claimed for Shs. 20,000,000/= for each plaintiff as general damages~-~- . . . ,,. . ·•.• . ··.· ·. ·_: .' .:·. ·.· ·. together with interests and costs. No objection was: raised· in the High:, .<· -· ·.· Court during the trial that the amount claimed did not fall within the-·:-·' , •.. >.-:. . . ·- jurisdiction of the High Court. No evidence was brought which led to the1;;•;; _i: :, .. ;.. ,_-/ . . .. . '. ,: conclusion that the ciaim was not within the jurisdiction of the High Court'.:. · __ : >· :. ·i.>.: . . ' . . . . . . . ,,. ~.-_ . . . -~ ... - .... . .,? ' . i- .~ ' ~ ~ ·In OurLady of Usambara Sisters case (supra) the principal claim was .Y.: ::/•,,.'•/ · be.low TShs. 10,000,000/= which·: was the Court's jurisdiction.There was: a-<'· · ·_· :_>:::.. specific claim of l~Shs. 8136,720 being the cost incurred for the production(:-.:·... ::-. ::;i';·. ·. ''" of Vitenge fabrics _and tax paid. -The circumstances of this case ar5= different ·: ,·:;: ::·-- : _;:: · -.,. ' from the. circumstances prev9iling in Our Lady of Usambara Sisters.·We_·>·'·,:,- ~,:·::: .. : are therefore of the considered view th~t this ground ha_s no b_asis. · -~ . -. In relation to the issue ofdefamation, we would like to state that, In a suit founded on defamation, the plaintiff must prove:- 7 .•• _.: .• : ' ,.. ~ • . ·, .; .... -! . ; . . 1. that .the...matter ' ::- ·. ol.:·'which, ·: ·. . ' he ·. complains ", ; was - . ;. •.· .... ... . ' ' ·, ' published . by the . .. . defendan( . . .. .· . ' . 2. that it was published of and concerning him/ .... \•, ·'";•·· :, and ·· · •_;· .: ·1.·· that ills detamatoiy1n.chatiict~r> a;.,d ..:·. 4. that it was published maliciously.. · 5. that subJed· to ·cettain exceptions as in the case of slander that he. has therepy suffered special damages; • According to Halsbury's Laws of England (4th Edition) paragraph 10 at page 7 a defamatory statement ls.defined-as follows:- 'f'.l defamatory statement is a statement which tends to lower a person· in the estimat{on ·alright · thinking members of society generally or to cause him to be shunned or avoid_ed or to expose him to hatre~ contempt or ridicule/ .... . or to ·convey an ~ 8 imputation.:Qn. him. disparaging ...... '•. .. . . . . . . .. or. inj1:1rious. to him in· . •·. . . his office/ profe.ssfona./calling/4.trade: or qusi!]ess." .. . .. . , Winfield and Jolowicz on to'rt (S th Edition) defines. defamation as under:- • "Defamation . . .: : . is .-the : .. publication . . . . . of .a statement • .. . . . . . .. '. which ~ ~ , .' ·• . ;... tends to lower a person in·•the estimation of right . thinki~g meli{/;/;i' ;;,=;o;;~i;. general!½ or which .. tends to make therrishtm· dr avoid a person. N According to Gatley:. 6n ti·b~I and ~l~~der. (8 th Edition) by Philip lewis:- I • • • - ' -~ • • ",: If', .. '~ defa1natory irnputation is one to a -mans discredit .or . which. · tends::.10 lower: htm · ·in .the . . estimation.• . . . of.. .. other$ . : . or. to .. expose him to .. -· . hatred,contempf or ridicule or to. injure his financial. .' . credit.// . '' '•·,: ..... •'. ·-:'• ·.•, ·.·· In Rudolf Chaula ·v. ·Molla.med Athuman, (1982) TLR 100 .- ·:-· .. ... :· ,'. Saniatta, J. as he tlien was, stated t~at slander .is .actionable without proof ·· ··· of special damage only, in . the f9ll¢>v'{\ng fowr cases:- ·· , •.> 9 (a) where· there Is an imputation ·or a criminal · offence punishable.withlinpdsonirJehtj"· . . 0 • • • • -; . . ·. .. ... . . . •, ,. ~ (b) ·where there is an imputation of a contagious or . infections disease likely to prevent other persons from associating with the plaintiff) . . _· (c) where there.is_ implltatipn 9f LJnchastif:½. adultery : or lesbii!.nism to any· _vvoman or girl ?Jnd . (d) where tl7ere . ·~- . . ' . is ' imputation. . . -·:, : of unfitness, dishonesty. · or.· incon1petence - in any office/ .. . profession; ·calling/·. trade. or business held or carried on by the plaintiff at the time when the slander was )Jublished .. In the. instant case th.ere is,. an 1mputation of the offence of theft. The act of the Managing- Director, of briefing the reporters of the Daily News and Uhuru -newspapers on the disposal of 5 tyres on the pretex · . . that they were defective,.·· without· providing any material evidence was·· · . .. slanderous. We are therefore inclined to· agree With the learned advocate : for the respondents· ·and the trial- Judge that the respondents were wronged, defamed and/or subjected to mental anguish, humiliation and 10 shame before- their• far.nilies1: co.I leagues, ;·and frie_nds .. ~No ·.evidence was·· ·, • <> 1-,· . ~. position .. We 9re therefore of:::- · adduced by the appellant-to contradict,the" . . the firm view that the respondents . were entitled to damages for. :_ ·: ,: defamation. We now have to ·:con.sider :whether ·or>not-the trial Judge assessed the damages using a corred:·.:. _principle of l~w. ·Thi~-~ would determine:- whether or not the· Co~_r,t s~oulg__ d_ist:urb the quantum of d9 mages awarded·•-:. by the trial Court. Black's law dictionary (ih . Editi~n) define general, damages as follows:~ 1Da1nages that the la~v presumes follows from the 1 ' . type of wrong . : ~ con1plained . of. -General.damages .. do , - ' , not need td be -specftlcally .claimed or proved to have been sustained. " .. The law on i:}ssessment.otdamages is ·settled. IrJ Davies ~v Powel~ (1942) ALL ER 657 which was~approved ~Y the Privy Cou~~i_l in Nance v · · British Columbia Electric Railway Co. Ltd (1951) AC.60,1, it V\{qS s\ated · thus:-· ... . . . ... 11 ;_ ... "whether the assessment of damages be by a judge or j1,1ry, . the c1ppellate . court is not justified in substituting a figure of its own for that awarded below-simply because it would have awarded a._different figµre if it•had tried . . . . .. - the case... pefore :thf:! :appeflate court can properly intervene, it must be satisfied either that the Judge . in a'ssesslng . the .damages, .· •., > • ';' > .. • •• • ~• M • ' • f • , applied a _wrong principle of/aw {as taking. into account some irrelevant factor of leaving _ out i:Jfaccount· ..s.011Je~relevant·,one);· or,· short · of this that· the-··amount. awarded is so inordinately low or so inordinately high that it must be a whole· erroneous· estimate of the ~. damage." [Emphasis provided]. ·. This legal position was adopted by the Court of Appeal for Easterr'f- Ct ·,._ Africa in Henry Hidaya Ilanga v Manyema Manyoka (1961) EA 705 afi::. .,· · .-,..,., r-· p. 713. The position has also been subscribed to by the Court. See -The - Cooper Motor Corporation v Moshi/ Arusha Occupational Health· . - Services (1990}TLR 96; Silas Sim~a v Editor Mfanyakazi Newspaper· and Another, Civil Appeal No. 7 of 1997 CAT (unreported) and Prof. 12- Ibrahim lupumba v Zuberi Juma Mzee, Civil Appeal No. 92 of 1998/· ---·;·, 1 ·: :..;·:,:· CAT (unreported) and Musa Mwalugala v Ndeshe Hota (1998) TUt4. ' • .. . . . e ~. ; . . ·•. . - .. . * .. - • . :. .. .• · Given the legal principle outlined ·above, there 'is no room ·to interfere even·· ., , - , . -·. • -• • a • •,:, . ":~<.••:.:.;~•:•=.__i_\ , . : : · ~ •. ,. . .••. ,,. 0 ,., ,: .. ' '. if we would have arrived at a differer:1t figure. ,- In the result and in view of our findings on the issues outlined _·:·, . hereinabove, the appeal •is hereby dismissed with costs·. · . •··..- .:: : ... · Order accordingly/>·:, : ·.· . S. MJASIRI JUSlJCE OF APPEAL :.· . . S. A. MASSATI 1 . JUSTICE Of APPEAL