[1996] UGHC 86

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

## CIVIL SUIT 805/95

# ENOS K. TUMUSIIME ...................................

### - VERSUS -

## TEDDY SSEZI CHEEYE ..................................

# UGANDA CONFIDENTIAL ....................................

### BEFORE THE HONOURABLE MR. AG. JUSTICE AUGUSTUS KANIA

#### **JUDGEMENT**

The plaintiff in this suit is the Managing Director and Chief Executive of uganda Railways Corporation. He filed this suit seeking to recover from the defendants general and aggravated damages from and a permanent injunction against the defendants following an allegedly defamatory article published of and about him in the defendants' Newsletter of January 9th - 16th, 1995. The article complained of is entitled "URC: LONG WAY TO GO" which is hereinbelow reproduced:-

> " Christmas decorations worth 4 million graced the gloomy blocks at Uganda Railways Head Office but the workers' strike over corruption recent and incompetence toned down the festive mood.

> Allegations of corruption and dubious deals still dominate the URC. On November 23rd 1994 Cheque No. RX 023130 worth U\$ 300,000 was drawn on URC Account No. F218 amidst irregularities such as the lack of supporting documents and absence of the required authority from the Bank of Uganda.

> The URC boss, Enos Tumusiime, who allegedly had money paid by UPTC meant for renting Communication equipment deposited in his personal account since 1992, when he allegedly ordered that UPTC should not be billed for the service.

> Enos Tumusiime with the connivance of Hon John Kawanga, Chairman Board of Directors of URC, are also alleged to have cleared a huge URC Warehouse in Kampala in order to rent it out to a Coffee exporter for Shs.800,000= a month.

> And now Uganda Confidential has learned bigger guns both local and international have moved into the fray. Enos Tumusiime has travelled to Nairobi with Hon. John

Kawanga at a cost of Shs. $13,000,000=$ to talk to the International Railways Federation Regional Office into accepting management's point of view.

But behind their backs, the British and Canadian Railway Associations are leaning on State House to see a pro-workers end to the strike. Meanwhile all is quiet at URC Head Office as management has engaged local defence forces to keep peace while the costly meetings of the Board of Directors and Management go on."

This suit was first filed on the 21/09/95 and an interlocutory judgment was entered against the defendants on 07/11/95 in default of entering appearance. After having taken evidence for assessment of damages judgment was entered for the plaintiff on $01/03/96$ . On the successful application by the defendants, the above judgment was set aside, the defendants allowed to file their written statement of defence within fifteen days from the 30/04/96 and the case was set for hearing on the 06/06/96. The defendants filed their written statement of defence as ordered but failed to appear at the hearing of the case on 06/06/96 and so the case proceeded ex-parte.

In the plaint the plaintiff contends that the words complained of are defamatory in their ordinary and natural meaning or alternatively by the innuendo they import. According to the plaintiff either by innuendo or by their natural meaning, the said words are taken to mean the plaintiff is:-

- $[_a1]$ A corrupt public officer - $[_b]$ An embezzler of public funds. - $[cl]$ A conspirator with criminals. - $[**b**]$ Dishonest and has engaged in - dubious deals to the detriment of Uganda Railways Corporation.

He further pleads that, as a result of these defamatory words, he has been brought into public scandal, exposed to insurmountable odium, disrepute and that he has been seriously injured in his feelings, character, credit and reputation as a law abiding citizen and has suffered mental anguish. He also pleads that though an apology for and a retraction of the article complained of were demanded of the defendants, the defendants refused and or failed and or neglected to comply.

In their joint written statement of defence after denying the averments of the plaintiff, pleaded in the alternative that the contents of the article complained of were substantially true.

At the commencement of the hearing of the case the following issues were framed:-

- 1. Whether there was publication by the defendant of the plaintiff. - Whether the publication was defamatory of $2.$ the plaintiff. - $3.$ If the first two issues are answered in the affirmative what are the remedies available.

$\mathbf{w}_{\mathbf{u}_{\mathcal{P}}}$

PWI Enos Tumusiime, the plaintiff who gave evidence on oath testified that he a Lawyer by profession and currently Managing Director of Uganda Railways Corporation. As the Managing Director he is the Chief Executive and presides over the management of Corporation funds assets and welfare of its work force. He further testified that the Corporation has operations outside of Uganda with branch offices in Mombasa, Eldoret, Kisumu, Dar-es-Salaam and Mwanza with a total annual turnover of US\$ 30,000,000. It is further his evidence that he read the article entitled "URC LONG WAY TO GO" in the Uganda Confidential issue No.114 of January 9th-16th 1995 which alleged against him as follows:-

- $[a]$ diverted He had Uganda Railways Corporation funds to his own account. - $[**b**]$ He had withdrawn US\$ 300,000 from the Corporation's account for his personal use. - $[cl]$ He had hired in connivance with the Corporation Board Chairman a Warehouse of the Corporation to a Coffee dealer at $Shs.800,000=$ . - $[**d**]$ And that he and the Corporation Chairman used Shs.13,000,000= to travel Nairobi to canvass for support from the International Railways Federation.

To him this article was intended to portray him as an incompetent, corrupt manager who embezzles funds entrusted under his management. PWI went on to say he never did any of the things the article complained of alleged him to have done. He testified from the time he took over as Chief Executive of Uganda Railways Corporation the performance of the Corporation has greatly improved.

He testified that he got shock anguish on reading the article. His business colleagues, friends including the Chief Executives of the Kenyan and Tanzanian Railways and Port authorities made stressful inquiries if the allegations in the article were true. He had a lot of painful explanation to do to his Minister, Board of Directors and his family members. He added that he demanded of the defendants that they apologise and retract the story but they did not comply. The issue of the Uganda Confidential bearing the offensive article was tendered by this witness and marked P3.

PW2 Charles Tumusiime Kabaseke who is an auditor with the Uganda Railways Corporation testified that he heads the Internal Auditing in the Corporation with the duty to ensure that revenue is properly receipted and expenditure within the set guidelines of the Board. He read the article complained of in the Uganda Confidential and found it disturbing because it was false. The general impression it gave him was that the plaintiff was corrupt and Uganda Railways Corporation riddled with malpractice. The witness testified that given the accounting system of the Corporation if the Managing Director had received and/or withdrawn the sums he is alleged to have withdrawn and/or received, he would have known. The witness testified that the plaintiff could never hire out a Warehouse of the Corporation in connivance with the Board Chairman as the decision to hire a Warehouse was to be taken by the Board of Directors. On his tours of duty at the Corporation's branch offices in Kenya and Tanzania the witness came across copies of the Uganda confidential Newsletter.

In his address to the Court at the end of the evidence for the plaintiff, Mr. Kabega, learned Counsel for the Plaintiff, submitted that it had been proved that there was a publication by the defendants of the plaintiffs from the evidence of PW2 who testified that he had indeed read the said publication and from the admission of the defendants in their written statement of defence. Mr. Kabega submitted that the article complained of was defamatory because it alleges that the plaintiff is guilty of corruption and embezzlement which is a criminal offence contrary to Section 250A of the PCA and because by the evidence of the plaintiff and PW2 these allegations are false. He argued that words that impute the commission of a crime, charge of fraudulent dishonest or dishonourable conduct are beyond question defamatory of the plaintiff. In support of this proposition Mr. Kabega relied on Bendle Vs United K. Assurance [1915] 31 T. L. R 31, Astles Vs Odongkara [1970]EA 374. Atley on Slander 5th Edition page 37 paragraph 53

Mr. Kabega submitted that by naming the plaintiff by and office the alleging that he embezzled public funds makes the article defamatory more so when PW2 testified that these allegations could not be true because he knew the plaintiff to be an honest person.

Mr. Kabega submitted once a defamatory publication has been proved it is presumed to have injured the reputation of the plaintiff. In assessing the quantum of damages Mr. Kabega submitted that the responsibilities of the plaintiff, the size of the organisation he heads, the strain shock and anguish inflicted on him and the fact that the defendants neither apologised nor retracted the offending article must be taken into account. He argued that malice should be imputed on the part of the defendants and exemplary damages should be awarded on the basis of Tam Vs Uganda Times [1980] HCB 130, Adimola Vs Uganda Times [1980] HCB 71.

He finally invited me to look at the following cases Richard Kaijuka Vs. Teddy Cheeye HCCS 688/91, Gordon Wayamuno Vs Teddy Cheeye HCCS 651/95 and Tumusiime Mulebili & Anr Vs Teddy Cheeye $\frac{HCCS}{341/92}$ and to use them as guides in making an award though he proposed an award of Shs.20,000,000= in general damages and an additional Shs.10,000,000= in aggravated damages.

While every person has the right of expression by writing what he wishes, every person also has a right to his good name, character and reputation. If a person in the exercise of his right of expression infringes on another person entitlement to his good name, character and reputation, it is only the law of libel that can stop such a person. If by the written word somebody imputes of a person in the exercise of the duties of his office criminal or dishonourable behaviour such imputation is defamatory.

This position is stated in Gatley on Libel and Slander 5th Edition page 37 at paragraph 53:-

> "It is libellous to impute to a man in any office corrupt, dishonest or fraudulent conduct or any unfitness or want of ability to discharge his duties and this is so whether the office be public or private or it be one of profit, honour or trust---"

Though the words used may not specifically state the plaintiff committed the offence, or is unfit or has a want of ability the innuendo they import will be regarded to make them defamatory of the plaintiff. See Farmer & Anr Vs Uganda Argus Ltd [1964]EA 568.

It is no defence in an action for libel that the defendant did not intend to defame the plaintiff. See Huston & 60 Anrs Vs Jones [1910] AC 2

$\cdot$ .

Once a defamatory publication has been made of the plaintiff, disparagement is presumed to have injured the reputation of the plaintiff for which he is entitled to damages. East African Standard Vs Gitau [1970] EA 678

If however, the defendant proves that the words complained of are true, the plaintiff cannot recover damages even if the said words were published maliciously.

Concerning the first issue the plaintiff claimed the words in the article in Uganda Confidential Newsletter of 9th - 16th January 1995 was published by the defendants of him. The article according to the evidence of the plaintiff referred to him both by name and by the office he holds. PW2 read the same article and confirmed it was referring to the plaintiff. In their written statement of defence the defendants did not deny having published the words complained of, of the plaintiff. The plaintiff has proved on a balance of probabilities that the article and the words complained of were published of and about him by the defendants. The first issue is accordingly answered in the affirmative.

As regards the second issue as to whether the publication complained of was defamatory of the plaintiff, it is necessary to decide whether the words used in the publication were false. This is necessary because were it to be proved that the words complained of were true no action would lie in respect of them against the defendants as no injury would have been done to the character of the plaintiff. See Sutherland Vs Stopes [1925] AC 42 at 78.

Evidence was adduced by the plaintiff PW1 that the contents of the article are false in that he never diverted funds of Uganda Railways Corporation for his own benefit, never hired out the Corporation Warehouse to a businessman. He went into great pains to illustrate that the money he is accused to have banked on his own account from proceeds of hiring Communication facilities to the Uganda Posts and Telecommunications Corporation had up to date not been paid to the Uganda Railways. Pw2 Charles Tumusiime Kabaseke who heads the Internal Auditing department in Uganda Railways Corporation testified that he has access to all information relating to receipts and expenditure in the Corporation. It was his evidence that no payments and diversion of funds as alleged in the publication occurred. He testified that the allegation of the plaintiff diverting US\$300,000= was false because UPTC had not to his knowledge paid money in respect of rental for URC equipment. He further gave evidence that the plaintiff could not have hired out Corporation Warehouse because this could only have been done as a result of a Board decision. The witness was shocked and disturbed because this article was false and he personally had never known the plaintiff to engage in corrupt practices.

Apart from insisting in their written statement of defence that the contents of the publication in issue were in substance true, the defendants did not produce any evidence as they did not attend the proceedings of the trial. The witnesses for the plaintiff gave their evidence confidently and from their bearing in Court, I believe them to be straight forward and truthful. Further, in the absence of contradicting evidence I find that the allegations levelled against the plaintiff in the publication complained of are false.

Regarding the defamatory nature of the allegations, Mr. Kabega learned Counsel for the plaintiff submitted that they impute against the plaintiff the commission of criminal offenses namely:-

- Abuse of office $C/S$ 83 PCA. $\lceil a \rceil$ - $[**b**]$ Corruption under the prevention of corruption act. - Embezzlement under Section 257 of $[_c]$ 257 of PCA.

The publication alleges that the plaintiff banked on his account US\$300,000 meant for URC after circumventing financial regulations, hired out with the connivance

of the Chairman Board of Director of URC a Corporation Warehouse at Shs.800,000 for his benefit and spent Shs.13,000,000= to make a trip not for the benefit of URC In my view these are grave criminal offenses which indeed impute thef embezzlement dishonest conduct and corruption. It is the law that suc imputation of a person in the exercise of the duties of his office constitutes what is defamatory. See Gatley on Libel and Slander Fifth Edition page 37 at paragraph 53 [Supra]

The plaintiff is such a person in a responsible public office presiding over an enterprise with an annual turnover in the region of US\$30,000,000, and responsible for a work force of over 3,000.

Though the words complained of do not expressly state that the plaintiff committed the offenses enumerated by the Mr. Kabega in his submissions, the article in my view leave no doubt that the words used therein were capable of bearing and were understood to bear the meaning that the plaintiff committed those offenses. See Farmer & Anr Vs Uganda Argus Ltd [1964] EA 468.

In the ordinary meaning and by the innuendo they import the words used in the article or publication complained of are defamatory of the plaintiff. The second issue is accordingly answered in the positive.

As to the quantum of damages I was asked to take into consideration the status of the plaintiff and use as a guide the awards made in previous cases. These included:

#### Cheeye HCCS Richard Kaijuka Vs Teddy No. $688/91$ where Shs.14,000,000= was

# awarded.

Gordon Wavamuno Vs Teddy Cheeye HCCS No. $651/95$ where Shs. 15,000,000= was awarded.

Tumusiime Mutebile Vs Teddy Cheeye HCCS No. 341/92 where Shs. 7,000,000= was awarded.

Mr. Kabega in guiding me as to the quantum of damages asked for Shs.20,000,000= in general damages and Shs.10,000,000= in aggravated damages.

Having carefully considered the evidence on record as a whole, I find it an established fact that the plaintiff is a public officer with vast responsibilities. Having found that the words and the publication was defamatory the plaintiff suffered great disesteem stress and humiliation as a consequence. All the plaintiff had to show in order to be entitled to damages was disparagement as a result of the publication and his injured reputation which he did. See East African Standard Vs Gitau [1970] EA 678.

I am also satisfied that the plaintiff has on a balance of probabilities proved that the humiliation and disparagement he suffered was aggravated by malice. Malice is usually deduced by the conduct of the defendant who had the duty in the first place to check the truth of his publication. I also believe that the defendants were asked to apologise which they failed to do. In their written statement of defence in paragraph 4 they maintained the words in the publication complained of were true in substance. This plea amounted to a plea of justification which the defendants made no effort to prove. It is the law that a defendant who raises the plea of justification but fails to prove it becomes liable to being condemned to aggravated damages.

| See: | Associated Leisure | | Ltd | (Phonographic | |------|--------------------|------------------|-----|---------------| | | | Equipment Ltd) | | | | | | e r s u s | | | | | | Associated | | | | | | Newspapers Ltd | | | | | | [1970] 2 OB 450. | | |

# John Nagenda Versus The Monitor Publication Ltd The Editor of the Monitor HCCS No.696 of 1992.

With the above circumstances and conduct of the defendants, the plaintiff is entitled to aggravated damages.

Having looked at the cases I was referred to as a guide and having considered the status of the plaintiff I equate the plaintiff to the first plaintiff in Engancyl Typusiine & 2 Ors Versus Teddy Cheeye [Supra]

In the above case the plaintiff was Permanent Secretary Ministry of Finance and Economics Planning and Shs.4,800,000= was awarded in general damages. Taking into account that this award was in 1994 and that inflation has eroded the shilling to a certain degree since then an award of Shs.7,500,000= will in my view meet the justice of the present case. I also award to the plaintiff the sum of $Shs.2,500,000=$ as aggravated damages thus making an aggregate sum of Shs.10,000,000= to attract an interest at Court rate from the time of judgment till payment in full.

A permanent injunction is hereby issued to the defendants restraining them from publishing any defamatory materials of and about the plaintiff. The judgment and orders herein are against the defendants jointly and severally. The plaintiff shall have the costs of the suit.

Augustus Kania


28/10/1996.