[2004] UGCA 34

## REPTIBLIC OF UGANDA IN THB COUIIT OF APPEAL OF T]GANDA AT KAMPALA

## CORAM: HON JUSTICE A. E. N. MPAGI-BAHIGEINE,JA TTON JUSTICE C. N. B. KITUMBA. JA HON . IUSTICE C. K. BYAMUGiSHA,. IA

### CIVIL APPEAL NO.6O OF 2OO2

## THE EDIToR STINDAY MONITOIT & OTHEIIS ::::::::::::::::::::::::::::::::::: APPIiLLANTS

### VEITSUS

## WABOMBA MUTENYO & ANOII:::::::: : : : : :: : : : : : : : RESPONDENTS

#### .]T]DGMENT OF A. E. N MPAG I-BAH IGEINIi ,lA -0

The appellants were successf-ully sued fbr defamation in Mbale High Court (Maniragulia J.) and on 3.10.2001 were adjudged to pay darnages of Shs.3,000,000, to each respondent.

The appellants are The Editor of the Sunday Monitor', The Editor of the Monitor and the Monitor Publications Ltd. are newspaper publishers. In their issue of the Sunday Monitor dated 9'r' August 1998, they published an article, Ex Pl, under the headline 'Mbale Tender Board Corrupt'. The article referred to a communication authored by the LCIII Chairrnan of the Industrial Division Council to the Mayor of Mbale. It was copied to the Town Clerk and the Assistant Town Clerk, Mbale Municipal Council.

The Chairman was expressing his concern about the ralnpant corruption in the Board.

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a ln a subsequent article, Ex P2, the appellants clarified that article Ex. P 1 was intended to refer to the Urban Tender Board and not the District Tender Board. Both articles did not name the members of the board.

The respondents, Wabornbe Mutenyo and Haji Muhamrnad Buyira who are the Chairrnan and member, respectively. of the Tender Board Mbale Municipal Council, filed a suit against the appellants clairning that the articles had defamed thern. The appellants pleaded qualified privilege which the trial Judge rejected.

#### The sole ground of appeal was that: l0

"The learned trial Judge failed to evaluate and appreciate the evidence adduced and hence erred in law in finding that the defence of qualified privilege was not available to the appellants, thus erroneously holding them liable for defamation of the Respondents."

Mr Jarnes Nangwala, learned counsel, for the appellants argued that the def-ence of qualified privilege which is a coffrmon law defence to defamation must be read together with Section 38 of the Press and Journalist Act which ofTers protection to the source of information. He pointed out that a rnernber of the public had approached the appellants'conespondent, Charles Kirya, DWl, with a request to publish about corruption in the Urban Tender Board. He submitted that the public had an interest to receive such information. It was a lnatter of public concern. The publication was by a letter from the Industrial Division Council Chairman. There was no rnalice as the article did not express the appellants' opinion but merely quoted the letter which a member of the public had handed to them. Mr Nangwala submitted that the leamed Judge looked at only the legal and not the moral or

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o social duty of the appellants. The appellants being journalists had a moral and social duty to infonn the public about corruption in their society.

Mr Ferdinand Nasomi, learned counsel, for the respondents, agreed that the communication was frorn the Chairrnan Industrial Division Council. It was authored by the Chairrnan of the Industrial Division Council. It was addressed to the Mayor of Mbale. It was copied to the Town and Assistant Town Clerk, Mbale Municipal Council. He, however, contended that the appellants did not obtain the letter officially frorn its author but frorr a third party who was not even its addressee, when they decided to publish it. It was not a press release. The publication was, therefore, indicative of an irnproper motive on the part of the appellants. Mr Nasomi vehemently argued that the circumstances under which this information was obtained was relevant to show rnalice. The learned Judge looked at it and decided that qualified privilege was not applicable as it was negated by rnalice. No effort was made to investigate the rnatter belble publication. The defence would have been available to the appellants if the Chairman had released the letter to the public by way of press release.

The learned Judge held:

"In my case, had I found that this was a privileged occasion it was here destroyed by maticious intent of Charles Kirya (sic) he wrote the first article after he was instigated by people seeking to revenge on members of the Board allegedly for having received money as an inducement to award them tenders but never got them.

Also in the second article there were excesses when the said Kirya took it upon himself to publish his own conclusions that 'Documents which I

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have further show that an office has been set up at the Municipal Council to extort bribes.'

There rvas no such allegation in the lettcr. So was the use of excessive language shifting the emphasis of the communication and as said above accompanied by a sinister motive of revenge and to hurt the menrbers of the troard on behalf of those who had gone to him rvith complaints of frustration."

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The position at law is that an occasion is privileged where the person who makes the cornmunication has an interest or duty, legal social or nroral to make it to the person to whorn it is rnade and the person to whorr it is so made has ^a con'esponding interest or duty to receive it. Both these conditions or the reciprocity between publisher and receiver nrust exist in order to render the occasion privileged. Adam v Ward (I971) AC 390: Watt v Lonssdon (1930) KB r30 c. A., Pullmu v Hill & ('o. ( ltt9l ) IOB 52{ at nage 528.

The alticles in issue, Ex. P I and Ex. PII, read as fbllows:

## ExPI- . MBALE TENDER BOARD CORRUPT Chorles Kirya'

In Mbale

The Chairman of Mbale Industrial Division, Hzrssan Wasswn Galiwango has described the district tender boartl :rs corrupt and ^a disgrace to the administration.

Galiwango's letter which The Sunday Monitor sawr accuses the board of abusing its independence and turning itself into a money-minting body.

The letter which was copied to Mbale Mayor, Patrick Namawa and town clerk read in part, 'I have the most unpleasant duty of expressing my disappointment about the conduct of the tender board.'

He said as the chairman he had all the evidence that the office was set up to extract bribes from the public, adding that there are numerous people rvilling to testify.

He further said that the board has outlived its usefulness.

The mayor confirmed the receipt of Galiwango's letter when The Sunday Monitor contacted him."

Ex PII -

# . IT'S T]RBAN NOT DISTRICT BOARD'

I would like to clarify the story "Mfutle Tender Board Corrupl" (Sunday Monitor, August 9). The Board in question is the Urban Tender Board and not the District Tender Board as reported.

Documents which I have, further show that an office had been set up at the Municipal Council to extort bribes.

I regret any inconvenience caused to the District Tender Boar."

Chorles Kirya Mbole.

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o ^Aperusal of the above two exhibits clearly indicates that they were mere reproductions of the letters in the appellants' possession. The wording and the quotes could not suggest otherwise. There were no editorial comments or contradictions. Therefore what the leamed Judge called "excessive language" cannot be attributed to the appellants. The judge's attempt to impute malice from such language and attribute it to the appellants has no basis in rny view.

However, neither the absence of malice nor the mere belief on the part of the defendant that the occasion is privileged makes the occasion so.

An occasion is privileged where the person who makes a communication has an interest or duty, legal, social or moral to make it to the person to whom it is made and the person to who it is so made has a corresponding interest or duty to receive l0

## it. Adam v Ward (supra).

Charles Kirya, DWl, testified having been approached by some mernbers of the public complaining about the rarnpant corruption in Mbale Urban Tender Board which they wanted, him as a journalist, to expose to the public. Part of his evidence reads:

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". . At first when these people come complaining and I heard the talk in town I could not write because I had no evidence. I at least needed something authoritative which I could quote. I had a friend of mine called Jack Nambafu. He was formerly working with Monitor. He came up and told me he could get me a letter written by the L. C.lII Chairman, Industrial Division which he had written complaining about the corruption in the Tender Board.

He brought in that letter, I read through. It was written by the Chairman Industrial Division then Mr Hassan Wasswa Galiwango. He

(t o had written it to the Mayor. This is the letter written by the Chairman. It is dated 9'h July I998.

> I contacted the author of the letter about the contents. He confirmed having written the letter.

> . what is in the letter is what I wrote in the article. What is in the letter is a matter for the public.

> . I have never applied for a tender in the Urban Tender Board, I have no grudge against any of the plaintiffs. As a journalist I have ^a moral duty of telling the public of what is happening either good or bad."

It should be appreciated that it is not easy to demarcate with precision occasions which are privileged from those which are not privileged or to define what kind of social or moral duty or interest will make the occasion privileged. Courts have therefore tended to apply a liberal interpretation of the rule to detennine whether the occasion is privileged and whether the privilege has been exceeded.

The learned Judge ruled:

". in the case before me the letter Ex Dl was not sent by a public officer (the Chairman) to the defendants (Newspapers) to publish. Hence no moral duty to publish existed although the matter was of public nature and of public interest. . ."

Mr Nangwala stated that the appellants had a moral duty to publish the article and that the defence of qualified privilege should be read together with Section 38 of the Press and Journalist Act 2000 which provides:

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a "Section 38 A journalist shall not be compelled to disclose the source of his or her information except with the consent of the person lvho g:rve him or her the information or on an order of a court of lal. . ."

This provision means that the Editors and Journalists have great liberty to protect the sources of their intbnnation. This policy is in the public interest otherwise the newspapers and the public would suft-er frorn lack of reading rnatter or inforrnation should the sources of infbrmation for newspapers dry up for fear of being disclosed. It is, however, interesting to note that in this case once the sor.rrce had been voluntarily disclosed, the respondents never arnended their pleadings to include the Chairman, the author of the defamatory letter. What is its ir.nplication? Does it mean that the respondents were not desirous of getting to the root of the lnatter? I leave it lbr them to answer.

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It appears to rne however, that there was tacit approval frorn the author to the appellants to publish the letter. The appellants' correspondent (DWl) checked with the author to verify the source and the authenticity of the letter. The Chairman/author confirmed to the journalist (DWl) that he had indeed authored the letter. He did not inquire frorn hirn as to how he had come to be in possession of it nor did he object to its being published, knowing very well that the inquirer was a journalist. I do not agree with Mr Nasonri that journalists always get their sources of inforrnation frorn press releases.

There was no basis fbr the learned Judge's inference that the Cl.rairrnan never wanted the letter to be published. Ifindeed he had intended it to be confidential as the Judge seemed to suggest he should have indicated so by rnarking it "conf-rdential."

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O This brings me to the question as to whether a duty existed for the appellants to publish the article, once publication is found not to have been objected to by the author of the letter. Mr Nangwala pointed out that the learned Judge only dealt with the legal duty leaving out the social or moral aspect of the matter.

Courts normally base the moral or social question on what ordir.rary people of ordinary intelligence and nroral t-ibre would consider as everybody's duty but which duty is not enfbrceabte by legal ploceedings, civil or criminal. This is ^a matter of considerable difficulty as the court is not to give its own view of the rroral and social duty, though it rnight feel that a great rnajority of ordinary people subscribe to that view. The court has to endeavor to asceftain what view "the great rrass of right-minded men and women would Iike," or would have an interest in or have a duty to inquire into, Hebditch v Macllwaine (1894) 2 OB 54. The r-rnderlying motive for the journalist must be the investigation into such a matter by the public or authority and not a rnere excuse fbr invective against the individuals concerrred. Charles Kirya, DWl, did not know any oltl.re rnenrbels of the board. The question ol any grudges did not arise, therefore. It is comrnon knowledge that the public conduct of any public person or oflcial in the ernployment of the state or local authority, the expenditure of public funds, the ulanagernent of public property and thus coruption by such officers are matters in which the public at large has a legitirnate interest. In Blackslalv v Lord ( 1983) 2 AER 3l l. (198,t) I QBI; (1983) 3 WLR 283. CA, the general topic ol the waste of the taxpayers' rnoney was a matter in which the public had a legitimate interest. It was held that the press was under a duty to publish, but that the public had no legitirnate interest iu tl.re reporter's inlerence. The publication of the reporl was therefore not privileged at cornmon law. In the rnatter beibre this court, the appellants were circumspect,

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the articles did not include any reporters' inference or explanation. I would respectfully follow the decision to that extent. The appellants owed a duty to the public. Charles Kirya did all that was reasonable to verify the source and inquire into some aspects of the matter.

Corruption in Uganda has reached epidemic proportions. It is eating at the core nerve of the economic life of the country with devastating consequences in every sphere of life. It is therefore a matter of public interest and the press as one of the great bulwarks of human rights clearly had a legal, moral and social duty to publish the letter.

In my view the defence of qualified priviledge would be available to the appellants. Since Kitumba and Byamugisha JJ. A also agree, the judgement and orders of the High Court are hereby set aside. The appeal is thus allowed with costs here and below.

$\ldots$ day of Date at Kampala this ... 2004.

A. E. N. MPÁGI-BAH GEINE **JUSTICE OF APPEAL**

$10$

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA **AT KAMPALA**

#### $\mathsf{S}$ CORAM: HON. LADY JUSTICE A. E. N. MPAGI-BAHIGEINE. JA HON. LADY JUSTICE C. N. B. KITUMBA,JA HON. LADY JUSTICE C. K. BYAMUGISHA,JA

### **CIVIL APPEAL NO.60 OF 2002**

$10$

### **BETWEEN**

# THE EDITOR SUNDAY MONITOR&OTHERS:::::::::APPELLANTS

#### $15$

#### AND

WABOMBA MUTENYO&ANOTHER:::::::::::::::::::::::::::::::::::: [Appeal from the judgment and orders of the High Court of Uganda at Mbale[Maniraguha,J] dated 3^rd October 2001 in HCCS No.15 of 1999]

## JUDGMENT OF BYAMUGISHA,JA

I had the benefit of reading in draft form the judgment prepared by

Mpagi-Bahigeine, JA. I agree with the reasons she has given in allowing

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25 the appeal. I would, therefore, allow the appeal in the terms proposed by

her.

Dated at Kampala this?......dayof....................................

C. K. Byamugisha **Justice of appeal**

# THE REPT]BLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

# CORAM: HON. JUSTICE A. E. N. MPAGI-BAHIGEINE, JA. HON. JUSTICE C. N. B. KITUMBA, JA. HON. JUSTICE C. K. BYAMUGISHA, JA.

CIVIL APPEAL NO. 60 OF 2OO2

### THE EDITOR OF SUNDAY MONITOR

o

& OTHERS :::::::::::::::::::::::::::::::::::::3::::: APPELLANTS

Versus

WABOMBA MUI'ENYO & ANO'|HER RESPONDENI-S

lAn appeal from the judgernent of the High Court sitting at Mbalc ( Maniraguha, J.) dated 3/10/2001 in HC(IS No.15 of200l ^I

## .ttit)GIil\ItiNt'ol- c. N. ti. KITtrt\fllA .t.\.

I have read the judgement of Mpagi-Bahigeine, JA. in draft and agree with it. I have nothing useful to add.

Datecl at Kampala this ! /Jfooy of T,,1, 2001.

CF{,A C. N. B. Kitumba JUSTICE OF APPEAL