RULING Waseem Vasta vs

IN THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA MBEYA SUB-REGISTRY

AT MBEYA CIVIL CASE NO. 11602 OF 2024 WASEEM VAST …………………………………………………………………. PLAINTIFF

VERSUS

KOMAIL RIZWAN ESMAIL T/A KAZIM RIZWAN ESMAIL ………………………….....…………….. DEFENDANT

RULING Date of Last Order: 1st August, 2024 Date of Ruling: 28th August, 2024 KAWISHE, J.: The above-named plaintiff filed this suit against the defendant on the tort of defamation. His claim is based on libel arising from insulting, ridicule, abusive and hatred words uttered by the defendant against the plaintiff. The plaintiff is claiming the following reliefs against the defendant: 1 i. Payment of USD 386,847.19 which is equivalent to TZS. 1,003,868,458.05 as compensation. ii. Payment of interest on the decretal amount at the court’s rate from the date of judgment till when payment is made in full. iii. Costs of the suit. iv. Any other relief the court may deem fit, fair and just to grant. In response to the plaintiff’s claim, in his written statement of defence, the defendant not only disputed the claims but also had two points of preliminary objections on point of law on the ground that: 1. The case before this court offends the Media Services Act, 2016 and the Media Services (Defamation Proceedings) Rules, 2019 (GN. No. 108 of 2019).

2. The plaint is offending Order VI, Rule 14 of the Civil Procedure Code (Cap. 33, R. E. 2019). It is trite principle that, where there is preliminary objection on point of law, it must be determined first before the hearing of the suit. Therefore, in this suit, this court ordered for the points of preliminary objection to be argued first. By the parties’ consent, the preliminary objections were argued by way of written submission. Mr. Cletus T. Nziku, learned advocate appeared for the plaintiff while, Mr. Steward Ngwale, learned advocate represented the defendant. 2 Arguing in support of the first point of preliminary objection, the defendant’s advocate submitted that, it is a practice and the law requirement that all suits or claims based on defamatory statements must be filed through petition and not plaint. He referred this court to rule 4 (1) of the Media Services (Defamation Proceedings) Rules, 2019 and the decision of this court in the case of Gombo Samandito Gombo vs. Eva Ndewalia Joseph Nangela, Civil Case No. 91 of 2023 (unreported) in which a suit filed by way of plaint was struck out. He added that it is a legal requirement that, the suit was to be instituted by way of a petition and failure to comply with that legal requirement makes the suit incompetent and it deserve to be struck out. Mr. Ngwale added that, the defects found in this suit are not curable by the

overriding objective principle which is enshrined under the Written Laws Miscellaneous Amendments Act No. 03 of 2018, since it is a point of law and the law must be adhered to. Bolstering his argument, he referred this court to the decision made in the cases of Gombo Samandito Gombo vs. Eva Ndewalia Joseph Nangela (supra) and Martin D. Kumalija & 117 Others vs. Iron and Steel Ltd, Civil Application No. 70/18 of 2018 (unreported). He prayed for this suit to be struck out. 3 On the second limb of preliminary objection, Mr. Ngwale argued that, Order VI, Rule 14 of the Civil Procedure Code (supra) requires the pleadings to be signed by the parties or agents who are duly authorized. He submitted that, in this suit, the plaint was verified by the plaintiff but singed only by the plaintiff’s advocate which is against the law. To amplify his argument, he referred to the decision made in the case of Avecenna International Academy vs. African Foundation for Education and Development (AFEDEV) Tanzania, Civil Case No. 61 of 2021 (unreported) and prayed for this court to struck out this suit and the plaintiff be condemned to pay the costs. Responding to the submissions made by the defendant’s advocate, Mr. Nziku maintained that, this suit was correctly filed by way of a plaint since the plaintiff’s claims in this case does not fall under the suits stipulated under Media Service (supra). He

argued that, rule 4(1) of the Media Service (Defamation Proceedings) Rules, 2019 and the case of Gombo Samandito Gombo vs. Eva Ndewalia Joseph Nangela (supra) cited by the defendant’s counsel are distinguishable to the present suit. That, the alleged defamatory statements were not published in any media and there is no need to comply with the Media Service Act and its Rules. 4 Amplifying his submission, he referred this court to the case of MW Rice Millers Limited vs. Mwasa Security Limited, Civil Appeal No. 10 of 2022 (unreported). He maintained further that, the suit was correctly instituted by way of plaint as provided under Order IV, Rule 1 of the Civil Procedure Code (supra). On the second limb of preliminary objection, the plaintiff’s advocate argued that, under the doctrine of overriding objective principle provided under section 3A, 3B of the Civil Procedure Code (supra) failure of the plaintiff to sign the pleading is not fatal since it is a settled rule that court should not be tied up with legal technicalities than looking on substantive justice. Mr. Nziku averred that, omission to sign on the plaint does not affect the merits of the instant suit nor does it hinder any party or the court to decide on merits. He argued further that, the cases cited by the defendant’s advocate are not relevant since they are distinguishable to the present suit. He is of the view that,

unlike the cases cited by the defendant’s advocate, in this suit the plaintiff’s advocate signed the plaint and the plaintiff verified the same. He prayed for the preliminary objections to be overruled with costs. 5 In his rejoinder, Mr. Ngwale started by giving the meaning of defamatory statement and argued that, a defamatory statement is said to be published if it is communicated to the third party and it is not necessarily to be through the media as stated by the plaintiff’s advocate. He referred this court to the case of Peter Ngomango vs. Gerson M.K Mwanga & Another, Civil Appeal No. 10 of 1998 which was referred in the case of MW Rice Millers Limited vs. Mwasa Security Limited (supra), cited by the plaintiff’s advocate. He insisted that, all defamation cases must be filed by way of petition and not plaint as the plaintiff did in this suit. He maintained that, the suit is incompetent and it deserves to be struck out. Rejoining on the second limb of preliminary objection, Mr. Ngwale argued that, the requirement to sign a pleading is a legal principle and it cannot be cured under the principle of overriding objectives. To bolster his argument, he cited the decision made in the case of Martin Kumalija & 117 Others vs. Iron & Steel Ltd, Civil Application No. 70/18 of 2018 (unreported). He sustained that, the wording under Order VI, Rule 14 is couched in mandatory term that a

pleading shall be signed by the party and failure to comply with such legal requirement is fatal and the suit must 6 be struck out. He referred the case of Hamza Omari Pandamilango & 48 Others vs. Namera Group of Industries (T) Ltd, Land Case No. 42 of 2019 (unreported) and prayed for the suit to be struck out. From the above vital submissions made by the learned advocates for both parties, this court is now called upon to determine on the merit or otherwise of the preliminary objections raised by the defendant’s counsel in this suit. On the first point of preliminary objection, the contending issue is whether the instant suit is guided by the Media Services Act (supra) and its Rules. It is the respondent’s advocate contention that, the suit was to be filed by way of petition and not by a plaint. He is of the view that, all defamation cases must be filed by way of petition the submission which was contested by the plaintiff’s advocate who argued that, suits which are filed by way of petition are those connected to claims published in media as provided under the Media Services Act (supra). To address the controversy, I had to revisit the Media Service Act and the Media Services (Defamation Proceedings) Rules, 2019. The Act defines defamation under section 35 to mean: 7 “Any matter which, if published, is likely to injure the reputation of any person by exposing him to hatred,

contempt or ridicule or likely to damage any person in his profession or trade by any injury to his reputation, is a defamatory matter.” The Act also defines publication under section 3 as: “… any communication of content through media.” The term media is defined under the same section to mean: “The industry, trade or business of collecting, processing and disseminating of content through radio, television, or newspapers and includes online platforms”. Thus, from the above provisions, I am inclined to Mr. Nziku’s argument that, since the plaintiff was not defamed through media, this suit does not fall under the categories of the defamatory statements as provided under the Media Services Act. The plaint does not state that the alleged defamatory statements were published in any media. Since no media was involved, the Media Services Act (supra) and its Rules are not applicable in this suit. The same position was maintained in MW Rice Millers Limited vs. Mwasa Security Limited (supra). Therefore, this suit was properly filed by way of plaint as a normal civil suit. Thus, the 8 issue raised concerning this point of preliminary objection is answered in the negative. Consequently, the first limb of preliminary objection fails. Approaching the second limb of preliminary objection, the issue is whether failure to sign in the pleading is fatal. The defendant’s advocate argued that, in

this suit the verification clause was signed by the plaintiff but the plaint was signed by the plaintiff’s advocate only which is contrary to the provision of Order VI, Rule 14 of the Civil Procedure Code (supra). The plaintiff’s advocate was at consensus with the defendant’s counsel assertion though he differed on what actions that shall be taken by this court. While the defendant’s advocate prayed for the suit to be struck out, the plaintiff’s advocate was of the view that, the defect is curable under the overriding objective principle as stated under section 3A and 3B of the Civil Procedure Code (supra). He prayed for the amendment of the suit since neither party to the suit has been prejudiced. This court had a quick glance on the plaint filed by the plaintiff in this suit and find that, the plaintiff signed only at the verification clause and his advocate signed on the other party of the plaint. I am aware that, signing a pleading is a legal requirement as it is provided under the provision of 9 Order VI, Rule 14 of the Civil Procedure Code (supra). The provision reads as follows: “Every pleading shall be signed by the party and his advocate (if any); provided that, where a party pleading is, by reason of absence or for other good cause, unable to sign the pleading, it may be signed by any person duly authorized by him to sign the same or to sue or defend on his

behalf.” But in the circumstance of this suit, that the plaintiff only signed on the verification clause and failed to sign on the other party. In Nyusta Peter Kabezi T/a Nyudiah Enterprises vs Herodius Sulus Mborowe T/a Nyudiah Enterprises (Civil Case 153 of 2019) [2020] TZHC 1583 (16 July 2020), this court when faced with less similar situation revoked the overriding principle and ordered the plaintiff to amend the pleading and proceeded with the hearing of the suit. Taking into consideration that, in the instant suit the plaintiff signed the verification clause, there is no need of striking out the suit. I find it will be more appropriate if the overriding objective principle will be applied. As a result, I order for the amendment of the plaint by signing at the appropriate party of the pleading which was not signed by the plaintiff. 10 In the final event, I find the preliminary objections have no merit and they are dismissed with costs. It is so ordered. DATED and DELIVERED at MBEYA this 28th day of August, 2024. E. L. KAWISHE

JUDGE COURT: Ruling delivered virtually in the presence of Mr. Seif Wembe learned counsel for the defendant also holding brief for Mr. Cletus Nziku the plaintiff’s learned counsel. E. L. KAWISHE

JUDGE 28/08/2024 11