IN THE HIGH COURT OF TANZANIA

(DAR ES SALAAM DISTRICT REGISTRY)

AT DAR ES SALAAM

CIVIL CASE NO. 108 OF 2013

ABDULRAHMAN KINANA………………………………………………..PLAINTIFF

VERSUS

PETER SIMON MSIGWA, MP ………………………………………..DEFENDANT

JUDGMENT

MURUKE, J.

The plaintiff who is the topmost executive of Chama cha Mapinduzi

(CCM) has sued the Defendant for an action of defamation arising from
the defamatory statement which was made by the Defendant on 21st
April 2013 at Nyamagana, Mwanza and subsequently recorded
electronically, at the request of the Defendant, and widely circulated
through newspapers, radio, television and social network on internet.
Consequential to the alleged defamation, the plaintiff claims for among
other reliefs, special damages in form of compensation for loss of
earning amounting to Tsh 350,000,000, general damages, exemplary
damages and aggravated damages. The plaintiff enjoyed the service of
the learned advocate, Mr Ng’maryo, while the defendant was
represented by learned counsel, Mr. Peter Kibatala. In the written
statement of defence, they raised the defence of fair comment.

In this case, the plaintiff testified for himself as PW1 and brought two
witnesses who were cross examined by the advocate for the defendant.
The defendant has, however, repeatedly refused to appear in court and
defend his case for eighteen months, reasons being that he was
attending parliamentary sessions and outdoor parliamentary activities.
It is worth noting that, plaintiff suit was closed far back 9th June 2015.
Then the suit went through several adjournments at the instance of the
defendant, for eighteen months. It was until 1st December 2016, when
Mr. Kibatala addressed the court asking for the last adjournment. For
the reason that, I will explain later, I wish to reproduce his submission:

“I pray for short last adjournment because my client is attending East

Africa Community Inter-Parliamentary games at Kampala. The other
witnesses cannot start testifying before defendant himself, for logical
sequence. I understand that there has been several adjustments caused
by defendant. Plaintiff counsel Mr. Ng’maryo has been complaining a
lot, and court granted adjournment reluctant.

“I also wish to inform the court that, I am intending to withdraw from

the conduct of this case because of my client conduct. However, before
I do so I have discussed with my client, he has instructed me to inform
the court that the newly instructed advocate will peruse court file
before next hearing date. And further that, defendant will come with all
his witnesses for defence hearing. He has two witness apart from
himself. In total it is three witnesses. If given two days defence case will
be finalized. Once again, as an advocate, therefore an officer of the
court, I will ensure that, Hon. Peter Msigwa appears with his witnesses
as this will be the last adjournment. I understand, this court has been
very accommodative with my client behavior of none appearance. I
undertake, to notify Hon. Msigwa accordingly as an officer of the
court”.

It is from the above submission by Mr Peter Kibatala who was

representing Hon. Peter Msingwa, that court made the following
orders.

i) Prayer for adjournment granted.

ii) This is last adjournment.
 iii) Newly instructed advocate to peruse court files before defence
hearing.
iv) Defence case to proceed on 7th December, and 14th December
2016.
v) Defendant to appear with all his witnesses without fail.
vi) Mr. Peter Kibatara, to notify Hon. Peter Msigwa on today’s
order by letter, the same to be copied to this court.

On 7th December when the suit was called, there was only advocate
Ng’maryo for the plaintiff. There was no appearance by defendant, or
his counsel. Instead there was a letter in the court records. The letter is
hereby reproduced:

HEKIMA MWASIPU,

P.O Box 71393,

Dar es Salaam,

6th December, 2016

HIGH COURT OF TANZANIA

DAR ES SALAAM

Sir,

Re: IN THE HIGH COURT OF TANZANIA

MAIN REGISTRY

AT DAR ES SALAAM

CIVIL CASE NO. 371/2014

Between

ABDULRAHMAN OMARI KINANA………………..……………………..PLAINTIFF

VERSUS

REV. PETER MSIGWA ……………………………………………………..DEFENDANT

Before: Hon Muruke, J

Reference is made to the above heading.

I have engaged to act for and on 7th December 2016. However, I will be
unable to appear in this honourable court because I am attending
criminal hearing in the High Court of Tanzania at Tabora before Hon.
Rumanyika J, in the case of Henry Kilewo and others versus Republic.

In the circumstances, I humbly request the matter to be scheduled on a

next future date convenient to the court diary.
I humbly request

Sincerely,

Hekima Mwasipu

Contrary to the court order, dated 1st December, 2016,

i) Defendant did not appear and or his witnesses.

ii) There was no appearance of newly instructed advocate as
promised by Mr. Peter Kibatala and ordered by the court.
iii) This court was not copied the letter written by Mr. Kibatara to
defendant.
iv) There is no perusal receipt in the court file.

Thus, there is no compliance of this court order dated 1st December

2016 not only by defendant or his witnesses but also by Mr. Kibatara,
who undertook to do so as an officer of the court. Very surprising to
this court, it is non-compliance of this court order by its own officers!.
Court orders should be complied forthwith. Non-compliance of court
orders is not only a sign of disrespect, but creates chaos in the entire
administration of justice. More so, when it is done by its own officers,
like Mr. Kibatala.

As shown above, there is a letter dated 6th December 2016 written by a

person called Hekima Mwasipu of P. O Box 71393, Dar es Salaam. The
letter indicates that Hekima Mwasipu had been engaged by Rev. Peter
Msigwa (the defendant) for a case that is coming 7th December 2016.
The letter purports to excuse Mr. Mwasipu from appearing in the case
allegedly for attending a criminal hearing in the High Court of Tanzania
at “Tabora”. Analysis of the letter reveals that:

i) The letter refers to Civil Case No. 371/2014 between

Abdulrahman Kinana and Peter Msigwa. The case at hand is
Civil Case No. 108 of 2013. Although the parties are the same,
number and the year is different. In court, cases are identified
by numbers and years. So, the letter is not referring to the
present case.
ii) Nowhere in the letter, is it show that Hekima Mwasipu is an
advocate of this court. The letter speaks for itself, not on a
headed paper, but also not addressed to the District Registrar
as an administrator of the court on cases. Furthermore, it is not
copied to the advocate of the plaintiff. Thus, there is a serious
question regarding the authenticity of this letter.
iii) The letter does not show who, if at all, Hekima Mwasipu is
representing at the High Court in Tabora. The letter says he is
attending a criminal hearing in the case of Henry Kileo and
others versus Republic without mentioning a case number.
iv) If Hekima Mwasipu is an advocate, he does not say when
instructions to act for the defendant in Civil Case No 371/2014
were given to him. If those instructions were given before this
court order 1st December 2016, and assuming without
accepting that Hekima Mwasipu was referring to this case then,
he was under the obligation to refuse that obligation knowing
that the defendant had been given the last adjournment.
v) My perusal of the court records shows that advocate for the
defendant appointed after resignation of Mr Peter Kibatala had
not perused the court record as undertaken by defendant
through Mr. Peter Kibatala and ordered by this court. So, as
matters stand today, that advocate would not have been able
to mount a defence case.
vi) A party who respect the court will appear in court particularly
when his advocate is absent. As records show, defendant or
any witness did not appear in court despite this court order
that said defendant was to appear with all his witnesses. This
happened many times as correctly submitted by Mr. Kibatala
on 1st December 2016, while asking the court grant last
adjournment. To this prayer, the court granted Mr. Kibatala his
prayer adjournment and marked that adjournment as the last
one.
There is nothing this court can do apart from ignoring Hekima
Mwasipu’s letter which does not refer to this Court’s case and more so,
it does not give any sufficient reason for this Court to vacate the order
for last adjournment.

We all know that Rev. Peter Msigwa is a Member of Parliament and has
an important law making job, but Rev, Msigwa is not above the law.
The three pillars of state: Judiciary, Executive and the Legislature are, in
my view, of equal weight. None of these pillars towers above the other.
We were told by Mr. Kibatala that Rev. Msigwa was in Burundi on
parliamentary duty. There is no further explanation. Even if this court
were to assume that the statement is true that Msigwa was attending
parliamentary duties, does this mean that Parliamentary duties
override the orders issued by this Court? The answer is no.

If Rev. Msingwa had any respect and gave honour to this court, he
should have planned the so called parliamentary duties accordingly.
This is a libel claim. Once proven, it is becomes immediate correction of
the liable. The longer it takes to correct, the faster it attaches to the
minds of the public. When the delayed correction comes, the public
would not even know what the correction was for, because the public
would have formed the lasting impression.
While the court is not able to know exactly why Msigwa kept
adjourning the hearing of defence case, what has happened is:

i) 2015 Elections came and went with Rev. Msigwa re-elected as

MP.
ii) The libel that was cast on the plaintiff in 2013 continued to be
believed.

The advocate for the plaintiff has made repeated prayers that this
Court pronounces judgment on the basis of the evidence adduced by
the Plaintiff. The standard of proof in civil case is on a balance of
probabilities. Since the defendant has not cared to rebut anything that
was adduced in court by the Plaintiff, allegations by the plaintiff will be
weighed on that balance. It is, however, appropriate for the court, to
act ex abundant cautela and proceed to look at the merit of the claim
as I hereby do.

Five substantive issues were drawn and agreed by advocates for the
parties:

Whether the defendant uttered the defamatory words;

i) If issue No. 1 is in the affirmative, whether the alleged

words are defamatory;
 ii) Whether the plaintiff has a name capable of defamatory
injury;
iii) If issue No. 2 is in the affirmative, whether the plaintiff was
injured by the alleged words; and
iv) Whether the defence of fair comment is open to the
defendant;
v) What relief

First Issue: Whether the Defendant uttered the defamatory words

complained by the Defendant. The evidence that was given by the first
witness (PW2) of the plaintiff, Henry Kavirondo, a journalist who was
present on the scene, and the images aand sound that came from the
Digital Versatile Disc (DVD) that was produced in Court leave no doubt
that the Defendant, Msigwa, while addressing a public rally at Mbugani
Primary School grounds in Nyamagana, District, Mwanza City on 21 st
April 2013, uttered the words that the plaintiff complains of as being
defamatory, and these are the words:

“Kinana (ninaomba waandishi wa habari mnisikie na nyie Usalama wa

Taifa mkapeleke habari), hana sifa ya kupita barabarani na kuwaambia
Watanzania waiamini CCM. Kinana mikono yake si misafi. Hata kwenye
NASACO, Shirika la Meli Tanzania, kuna harufu ya ufisadi ndani yake;
ajibu hoja…. Kinana meli zake ndizo zinazohusika kubeba mapembe
nchi hii. Hajajibu hoja hii. Kwa siku tembo sitini na saba wanauliwa
katika nchi hii… Hao ndiyo wanaokifadhili Chama Cha Mapinduzi, akina
Kinana, halafu eti wanakuja kuwashawishi Watanzania muwasikilize na
kwamba Chama Cha Mapinduzi ni kizuri. Halafu leo tukikaa ndani ya
Bunge tunapojaribu kuwatetea wananchi. Haya mambo ninayo ongea
ni ya hatari kwa sababu haya yote ni majangili. Ni organized crime. Ni
mtandao wa kimafia, uko duniani kote, unaweza ukatuua lakini
wabunge tumesimama tunawatetea…”

The Plaint makes a fair translation of these words:

“ Kinana (and let all news reporters hear me and you, officers of the
Tanzania Intelligence Service, go report this) has no right to appear in
public asking Tanzanians to have faith in CCM. Kinana’s hands are not
clean because within NASACO, the Tanzania Shipping Corporation,
there is the stench of corruption. Let him him refute this. Kinana’s ships
have been carrying ivory from this country. He has not refuted this fact!
Sixty seven elephants are killed in this country with each passing day.

The Kinanas who support CCM are the ones who now come forward to
beguile Tanzanians, asking them to agree with them that Chama Cha
Mapinduzi is a sound political party. We now sit in Parliament
defending people’s rights without thinking of our own constituencies.
What I am telling you today is dangerous to me because these are
poachers in an organized crime syndicate. A worldwide mafia which is
capable of killing us. But we, Members of Parliament, are steadfast in
defending you….”

The third witness brought by the Plaintiff, Peter Fabian, was, like the
first witness, present at Mbugani Primary School Grounds when the
Defendant was addressing the rally on 21st April 2013. He gives similar
testimony about the Defendant utterances. Not only has the plaintiffs
evidence proved that defendant uttered the complained defamatory
words, but defendant in his written statement of defence particularly at
paragraph 8, raised a defence of fair, and bona fide comment. Thus,
first issue has been answered in the affirmative.

Second Issues: Whether the words are defamatory

Before answering the issue, it is worth defining defamation. In the case

of Said Ali Maswanya Vs African Buyer and Trader (Publications) Ltd and
others [High court of Tanzania at Dar es Salaam (Kisanga, J)] Civil Case
115 of 1976 (unreported) court held that:

(i) A defamatory case is, inter alia, one which tends to lower a
person in the estimation of right thinking members of the
society generally.
 (ii) In considering whether the words were defamatory in their
ordinary hidden meaning, the court will look at the effect in
the mind of reasonable man in the community.

In Rugarabamu Archard Mwombeki V Charles Kizigha and three others

[1985] TLR 59 at page 68; this court (Mtenga, J as he then was), defined
defamation stating that defamation;”… Is a false and malicious
statement about a man to his credit.”

B.M Gandhi, Law of Tort, 1987, Eastern Book Company Law Publishers,
Delhi, India observes at page 448 that;

“To succeed in an action for defamation, the plaintiff must prove the
following essentials: (1) that the statement was false and defamatory;
(2) that it referred to the plaintiff; (3) it was published by the
defendant.”

As regards falsity or otherwise of the publications or statements by the

defendants, it is trite law that falsity in defamation cases is always
presumed in favour of the plaintiff. Thus, B.M Gandhi states at page
448 of his book supra:

“The falsity of a defamatory statement is presumed by the court in

favour of the plaintiff. It is for the opponent to prove the truth of the
statement. The plaintiff therefore need not prove the falsity of the
statement… It is customary to allege that the statement is false but
since the burden to prove that it is true i.e justification or the technical
name for truth lies on the defendant, it is not the worry of the plaintiff
to prove the falsity… However, it is necessary for the plaintiff to allege
in his plaint that the imputation is false and malicious.”

In Civil Case No. 7 of 2000 Mrs. Caroline M, Whiteside Vs The Editor

Sanifu Newspaper & another (unreported), Mchome, J, referring to the
book Sir John Spry in Civil Law of Defamation in East Africa page 19
defined defamation as:

“A statement is defamatory if it likely to lower the person of whom it

made in the estimation of ordinary just and reasonable men. It may be
defamatory according to the ordinary meaning of the words used or
according to some innuendo they may convey. In deciding whether
words are defamatory, the test is what the words could reasonably be
regarded as meaning, not only to the general public but also to all those
who have a greater or less special knowledge about the subject matter.
The fact that a statement is made to a person who knows it to be
unfounded does not make it any less defamatory. There is a clear
inference of criminality in the words uttered by the defendant as
complained in the plaint and proved in court by evidence given by the
plaintiff’s witnesses. The defendant accuses the plaintiff to be corrupt. (
“Kinana mikono yake si misafi. Hata kwenye NASACO, Shirika la Meli
la Tanzania, kuna harufu ya ufisadi ndani yake; ajibu hoja”). The
defendant acusses the plaintiff of being trafficker in ivory (Kinana meli
zake ndizo zinazohusika kubeba mapembe nchi hii. Hajajibu hoja hizo!
Kwa siku katika nchi hii tembo sitini na saba wanauawa).

The defendant accusses the plaintiff of being part of organized crime

(“Hao ndiyo wanaokifadhili Chama Cha Mapinduzi wakina Kinana
halafu wanakuja eti kuwashawishi Watanzania muwasilikilize na
kwamba Chama Cha Mapinduzi eti ni kizuri. Haya mambo
ninayoongea ni hatari kwa sababu haya yote ni majangili. Ni
organised crime. Ni mtandao wa kimafia, uko duniani kote, unaweza
ukatuua..”)

Ivory is government trophy by the definition given by S. 27 of the

Tanzania Wildlife Act, 2013. This law makes it unlawful to posses, buy,
sell, or in any way deal in any government trophy. Section 28 of the Act,
imposes a minimum sentence of 20 years imprisonment, making any
dealing in government trophies a very serious offence and one frowned
upon by the Tanzanian and international societies. Suffice it to say the
repealed Tanzania Wildlife Conservation Acts of 1974 and 2009 impose
equally severe prison sentences for dealing government trophies.
Organized crime, under the Economic and Organized Crime Control Act,
Cap 200 (R.E 2002) is another very serious offence. It is an offence only
triable in the High Court (S.3 of Cap 200) with penalties of
imprisonment of up to 15 years (S. 200) with penalties of imprisonment
of up to 15 years (S. 60). One could also see an imputation of the
offence of murder in the expression “Ni mtandao wa kimafia, uko
duniani kote, unaweza ukatuaa”. Whereas murder is heinous offence,
murder committed mafia-style is even more reprehensible.

Imputation of a crime in defamation is actionable without any proof of

special damages. In Halbury’s Laws of England (4th Edition) Vol 28
paragraph 56 at p. 28 (2), it is observed:

“ An action will lie without proof of special damage at the suit of a

person of and concerning whom an oral imputation has been made
and published that he has committed a crime punishable by
imprisonment.”

In note 2 to the observation (at p 29) it is said:

“The basis of the action is not that the words put the defamed person
in jeopardy of criminal prosecution, but that they lead to social
ostracism.”
Halsbury’s Law of “England, 3rd Edition, Volume 24 at page 47 says of
allegation of commission of a criminal offence in a libel case said:-

“If the statement complained of imports the commission by the plaintiff

of a criminal offence, the defendant to succeed in his plea of
justification, must prove the commission of the offence charged as
strictly as if the plaintiff was being prosecuted for the offence”. The
issue number two has been answered in the affirmative.

Third Issue: Whether the Plaintiff has a name capable of defamatory

injury

In the previously quoted volume of Halsbury’s Laws of England, at para

1 on page “5(3), the learned treatise observes:

“ In English law, speaking generally, every person is entitled to his

good name and to the esteem in which he is held by others, and has a
right to claim that his reputation shall not be disparaged by
defamatory statements made about him to a third person or persons
without lawful justification or excuse.”

It is therefore right to say that a person’s “good name”or his good

reputation, is an entitlement that is part and parcel of that person’s
dignity as a human being. This is the most fundamental right and is the
second right mentioned in our Constitution. Article 12 (1) of the Katiba
ya Jamhuri ya Muungano wa Tanzania proclaims:

“ Kila mtu anastahili heshima ya kutambuliwa na kuthaminiwa utu

wake” (Translated: Every person is entitled to recognition and respect
for his dignity.)

In the case of Professor Ibrahim Lipumba v. Zuberi Juma Mzee [204]

T.L.R 381 at p.387 (4), the Court of Appeal Tanzania had this to say
regarding a person’s right to his reputation:

“We wish to respectfully associate ourselves with the observations

made by Lord Nicholls in Reynolds v. Times Newspapers [2000] 2 LRC
750 where he stated at page 760:

Reputation is an integral part of dignity of the individual. It also forms

the basis of many decisions in a democratic society which are
fundamental to its well being; whom to employ or work for, whom to
promote, who to do business with or who to vote for. Once
besmirched by an unfounded allegation in a national newspaper, a
reputation can be damaged forever, especially if there is no
opportunity to vindicate one’s reputation. When this happens, society
as well as the individual is the loser. For, it should not be supposed
that protection of reputation is a matter of importance only to the
affected individual and his family. Protection of reputation is
conducive to the public good. It is in the public interest that the
reputation of public figures should not be debased falsely.”

It follows that every person’s good name, or in other words, his

reputation, has value. This is to say that every human being under our
constitution has dignity, reputation, and good name capable of
defamatory injury. A person’s reputation is his property. In the case of
Al-Hajj Aboud Jumbe Vs. The Chief Editor, Motomoto and two others,
Maina J, held that;-

“The allegations against the defendants in both cases were that they
had misused their official position. In the present case the plaintiff is a
retired Head of State in Zanzibar and also a retired Vice President of
the United Republic of Tanzania. The allegations against him are very
serious, as I have already stated; and impute criminal offence for
treason. I take a very serious view of these false allegations against a
former Head of Government.

What is the plaintiff’s reputation? Evidence has been adduced in Court

regarding the Plaintiff, Abdulrahman Omar Kinana’s reputation. His
present position of Secretary General of the Chama Cha Mapinduzi
(CCM) political party is preceded by many years of successful political
career as a member of the CCM Central and National Executive
Committees. Member and Speaker of the East Africa Legislative
Assembly. Member of Parliament of Parliament (for several successive
terms) of Arusha Constituency. A minister of Government for Defence
and for Foreign Affairs at different times. And a honourably retired
Colonel of the Tanzania Peoples Defence Forces. The Plaintiff is well
educated having gone through secondary education in Tanzania and
obtained university degrees outside Tanzania, including a Master’s
degree in Management and Public Administration from Harvard
University. The Plaintiff has, without any scintilla of doubt, a good name
and solid reputation. And that name is capable of defamatory injury.

To falsely and maliciously call the Plaintiff a criminal whose crimes are
be punishable by death or imprisonment for as long as long as twenty is
to grievously injure his basic dignity as a human being and to manage
his reputation and good name beyond any meaningful repair. Thus, the
third issues had been answered in the affirmative.

Fourth Issue: Whether the Plaintiff was injured by the defamatory

words.

There is a wrong argument that if a person is not injured by defamation

because he has a solid reputation capable of withstanding the
defamatory onslaught, then the defendant can get away the wrong he
committed. This position is wrong because it rewards a bigger wrong
than if the plaintiff was weak in his character and the defamatory
damage had a bigger effect. Alternatively, a good person should be
protected in his goodness and not the other way round.

During cross-examination, the advocate for the defendant questioned

the plaintiff regarding any adverse effects of the defamation published
against him by the defendant. The fact that the plaintiff has retained his
position as the CCM Secretary General and continues to be respected
and trusted by his party and colleagues is no licence for someone to call
him a criminal and to publish malicious falsehoods about him. The case
of Reynolds favourably cited by the Court of Appeal in the case of
Professor Ibrahim Lipumba makes the important remark that in this
respect:

“Protection of reputation is conducive to the public good. It is in the

public interest that the reputation of public figures should not be
debased falsely”.

There is no doubt that the comments made by the defendant were

politically motivated. These utterances have never been defended in
court at the refusal or neglect of the defendant. They have been
vigorously challenged by the plaintiff while testifying for his case. The
utterances are therefore taken to be baseless and untrue. The
Defendant uttered the defamatory words while addressing a political
rally in a public place. The references to the plaintiff were references to
his political position and career. The political adversary to the
defendant was CCM, and this was personalized in his speech by the
defendant who he discounted as by alleging that he was an upstanding
person or even a credible politician.

The circulation of the defamatory words that were uttered by the

defendant were certainly country wide, particularly bearing in mind the
defendant’s invitation that news reporters and officers of the Tanzania
Intelligence Services disseminate the words. But evidence has been
adduced in Court that the words were electronically recorded and
circulated on print and electronic media as well as on the internet. In
this regard, it can be said that the circulation of the defamatory words
was not only country wide but globally so.

Evidence has been adduced in Court that the Defendant was served
with a letter for demand for retraction and apology, but not only did
the defendant not heed the demand given in the letter but he went
ahead and repeated the defamatory words. The fact that the defendant
elected not to come to Court to defend the suit is further evidence of
his indifference and neglect of the claim.

The plaintiff has therefore suffered general damage for the false and
baseless untruths that were leveled against him. The general principles
for awarding general damages were covered by Sir Thomas Bingham,
MR in the case of John v. MGN Ltd [1996] All 2 ER 35 at page 47 and
quoted with approval in the Professor Lipumba case. The learned
Master of the Rolls said:

“The successful plaintiff in a defamation action is entitled to recover

as general compensatory damages, such sum as will compensate him
for the damage to his reputation, vindicate for the wrong he has
suffered. That sum must compensate him for the damage to his
reputation, vindicate his good name; and take account of the distress,
hurt and humiliation which the defamatory publication has caused. In
assessing the appropriate damages for injury to reputation the most
important factor is the gravity of the libel, the more closely it touches
the plaintiff personal integrity, professional reputation, honour,
courage, loyalty and the core attributes of his personality, the more
serious it is likely to be. The extent of publication is also very relevant:
a libel published to millions has greater potential to cause damage
than a libel published to a handful of people.

“A successful litigant may properly look to an award of damages to

vindicate his reputation: but the significance of this is much greater in
a case where the defendant acknowledges the falsity of what was
published and publicly expresses regret that the libelous publication
took place.”
The Court has to take into account the clear points in the John v. MGN
(supra) case, to arrive at a sum of general damages that will be seen as
adequate on the one hand and not excessive on the other hand.

It is in the case of Saidi Ali Maswanya v. African Buyer and Trader

(Publications) Ltd and others (1981) T.L.R 221 where Kisanga, J. (as he
then was) held:

“In assessing damages for libel, the court will take into account factors
such as the status of the plaintiff, the extent of the circulation of the
publication and the conduct of the defendant.”

Tanganyika Standard (N)Ltd and another v. Rugarabamu Archard

Mwombeki (1987) T.L.R 40 (being on appeal to the Court of Appeal of
Tanzania of case above the Appeal held:

“In arriving at the award, the High Court took into account a number
of factors including the wide circulation of the newspapers in which
the libel was published, the refusal by the appellants to tender an
apology despite repeated invitations to do so”.

Sir John Spry in his booklet Civil Law of Defamation in East Africa
(Chapter 8 pp 43-49 also lists some of the principles to bear in mind in
assessing the quantum of damages for defamation. I totally agree with
him and I herein below reproduce some of those principles and adopt
them in this judgment:

“1. In the assessment of compensatory damages, the main factors to be

considered are the gravity of the defamation and the extent or
character of the publication. As a general rule, publication to one or
two individuals will be regarded less serious than widespread
publication through a popular medium such as a newspaper.

2. The status in life of the plaintiff and any office he may held and, while
anyone who occupies a position in the eye of the public must expect to
be subject to criticism, it is not considered in the public interest that he
should be subjected to unfounded attacks on his honour and character.

3. The status of the person to whom the defamatory statement is

published may also be relevant. The fact that the person to whom the
statement published is in a position to dismiss it out of hand or even to
check its accuracy is no ground for awarding nominal damages; it
maybe that no one the world will believe it, but that is no reason for
depriving the victim of the appropriate damages.

4. The mental approach of the defendant at the time of the defamation

is relevant.

5. The use of violent language may be evidence of malice

6. Damages may be aggravated by the conduct of the defendant, after
the suit has been filed.

7. A refusal to apologize may be aggravating factor, and there may be

occasions where, although defamation is denied, the publication of a
qualified apology would be prudent. If, however, the lack of apology is
attributed to plaintiff’s attitude, that fact will tend to reduce the
damages.

8. Compensatory damages, unlike exemplary damages should not be

diminished on the ground that the defendant has only limited means,
although in assessing damages, the court is entitled to look at the
whole of the circumstances and the position of the parties in the
particular community to which they belong.

General damages are compensatory in nature. According to Halsbury’s

Laws of England, op cit., at para 248, page 127 (5). They operate to
vindicate the plaintiff to the public and to console him for the wrong
done; they are better viewed as solatium than as monetary
recompense for harm measurable in monetary terms. Special damages,
over and above such damages, may be awarded in respect of actual
material loss proved to have been sustained as a result of the words
complained of (ibid). Aggravated damages cannot stand alone without
being seen as part of general damages. According to the Halsbury’s
Laws of England (op. cit), and the case of Rookes v. Bernard [1964] AC
1129 and [1964] 1 ALL er167, “aggravated damages” are meant to
compensate the plaintiff for the additional injury, going beyond that
which would have flowed from the words alone, caused the presence
of aggravating factors. This Court will therefore take into account those
aggravating without separating general damages from “aggravating
damages”.

Exemplary damages are synonymous with punitiveor vindictive

damages. In the case of Angela Mpanduji v. Ancilla Kilinda (1985) T.L.R
16 (6), this Court took the definition from Jowitt’s Dictionary of English
Law, 2nd Edition as follows:

“… exemplary, or punitive or vindictive damages are damages given

not merely as pecuniary compensation for the loss actually sustained
by the plaintiff, but also as a kind of punishment of the defendant,
with the view of discouraging similar wrongs in the future, as in
actions for defamation, malicious injuries, oppression, continuing
nuisances, etc.”

Punitive also known as exemplary or vindictive damages will apply to

the current case.

Contrary to a popular belief that politics can be a “dirty game” but in

reality this ought not to be so. Politicians are leaders in every respect.
The faith and respect of the public in politics as a way of leading the
development of this country. Formulation of its laws and policies and
presenting a respected and credible opposition to any political party
in government are matters that should be taken seriously by courts
and laws. Defamation and lies as a means of gaining political mileage
is not only reprehensible, but it is also a disgrace to our country and
to politics as a career. As the Court of Appeal justices in the case of
Professor Ibrahim Lipumba (supra), said at page 387, there is no
licence to fabricate lies under the pretex of fair comment on a matter of
public interest and such behavior must be deprecated. They said: “We
expect from our leaders, both in government and in politics, to have
respect of the truth”.

The Court is of firm view that in no uncertain terms politicians are not
at liberty to use defamation as their tool of trade. The fact that the
defendant knew that he was not speaking the truth and that he was
using falsehoods to further his political agenda must be punished by
being ordered to pay the plaintiff exemplary damages as claimed for by
the plaintiff.

Regarding special damages, the plaintiff gave evidence that he was

going to enter into a joint venture horticultural project, but that project
was abandoned by the plaintiff’s prospective partners on the ground
that the defendant had publicly declared the plaintiffs to be an ivory
dealer. This publication by the defendant made the plaintiff politically
sensitive to the project. The plaintiff claimed the sum of Tshs. 350
million as his loss of prospective earnings. The Defendant has not
brought any challenge to that figure.

Sixth Issue: Whether the defence of fair comment is available to the

defendant

In a defence for fair comment, the words complained of by the plaintiff

must constitute a comment, and not an apparent statement of fact.
The comment must be on existing and accurate facts, and the comment
must be fair in itself, and it must be proven to be in the public interest.
The position was insisted in Halsbury’s Laws of England, op. cit. at para.
148 page 77(8) and also the case of Figueredo v. Editor, Sunday Nation
(1968) E.A 501 at page 504 (9). In the case of Prof. Lipumba (op.cit), the
Court of Appeal remarked:

“It is trite law that the defence of fair comment is conce (sic) with the
protection of comment. The appellant had to plead the facts upon
which the comment was based and the facts must have been in
existence.”

In the case of Joseph C. D’Souza Vs The Editor, Mfanyakazi & others,

Mrosso J. held that:
“There was no a shred of evidence to substantiate any of those
allegations of criminal conduct on the part of the plaintiff. It is plain,
therefore, that a plea of fair comment is not available on the 4th
defendant. The probability is that he had imagined a situation and
believed in it tenaciously. That doesn’t give him justification for
publishing those falsehoods”.

On whether the defense of bonafide and fair comment is available to

the defendants, the following authorities will be of help. In MUKOOME
& ANOTHER v EDITOR IN CHIEF OF BUKEDDE NEWSPAPER (2010) 2 EA
331 at page 334, the High Court of Uganda defined the word fair
comment as follows:

“This is a defence to an action for defamation that the statement made

was fair comment on a matter of public interest. The facts on which the
comment is based must be true and the comment must be fair…”

B.M Gandhi has observed in his book Law of Tort suppra at page 479
that: “The defence of fair and bonafide comment is only applicable to
expressions of opinion as distinct from assertions of facts. The onus is
on the defendant to show that the matter commented upon is a matter
of public interest, that the statements of facts relating thereto are true,
and the comments based on the facts are fair and bonafide.”

It was held in HUNT v STAR NEWSPAPER CO. (1908) 2 KB 309 that:

“But if fact and comment be intermingled so that it is not reasonably
clear what portion purports to be inference, he (the reader of
publication) will naturally suppose that the injurious statements are
based on adequate grounds known to the writer through not
necessarily set out by him…

This court, Muruke J in the case of Milembe Constructions Co. Ltd &
another v. The Editor Taifa Letu newspaper and The Guardian Limited,
Civil Case No. 185 of 2001 held that:

“It is essential that the comment should be based on facts which are
true, and not on fictions. If the facts do not exist, the foundation on
the plea is gone.”

The simple truth is that a defendant cannot bring a defense of fair

comment if the words complained of are untrue, as in the case here.
Worse, the defendant has not pleaded the words on which the
comment he claims to have made was based. Without pleading the
basis of the comments (which are facts that are true) and then pleading
the comments themselves, the Court will have nothing to base its
decision on that defense. This conclusively bars the defendant in this
case from making the defense of fair comment.

What Relief?
This suit is devoid of any defence evidence because the defendant has
refused or neglected to present that evidence for 18 months. As said
before, this court has acted ex abundant cautela and analysed the
evidence given and the law applicable. I may conclude, from the
foregoing, that the plaintiff is entitled to only two heads of damages.
The plaintiff is entitled to the general damages for libel as may be
assessed by this court. He is also entitled to receive exemplary
damages. Although the latitude of this court in awarding these two sets
of damages in an action for libel is very wide, this court takes into
account a number of factors to arrive at figures which serve justice to
all the parties concerned. Hirst L.J of the Court of Appeal of UK has
listed down some of these persuasive factors in the case of Bary John
Jones v Eve Pollard: Mirror Group Newspapers Ltd; and Steve Bailey
1996 EWCAS Civ 1186;

“… in arriving at the correct figures for damages, there are number of

factors which it is appropriate to take into account, and which were
helpful listed by Mr. Andrew Caldecott QC, on behalf of the plaintiff as
follows:

1. The objective features of the libel itself, such as its gravity, its
prominence, the circulation of the medium in which it was
published and any repetition.
2. The subjective effect on the plaintiff feeling (usually categorized
as aggravating features) not only from the publication itself, but
also from the defendant’s conduct thereafter both up to and
including trial itself.
3. Matters tending to mitigate damages, such as the publication of
an apology.
4. Matters tending to reduce damages, eg evidence on the plaintiff’s
bad reputation or evidence given at the trial.
5. Vindication of the plaintiff’s reputation past and future.

1. In arriving at the correct figures for general and exemplary

damages, I have taken into account the plaintiff present position
of Secretary General of the Chama Cha Mapinduzi (CCM) which is
preceded by many years of successful political career as a
member of the CCM Central and National Executive Committee.
Member and Speaker of the East Africa Legislative Assembly,
Member of Parliament (for several successive terms) for Arusha
Constituency and a honourably retired Colonel of the Tanzania
Peoples Defence Forces. A minister of Government for Defence
and for Foreign Affairs at different times. The Plaintiff is well
educated having gone through secondary education in Tanzania
and obtained university degrees outside Tanzania, including a
 Master’s degree in Management and Public Administration from
Harvard University. Plaintiff has, without any scintilla of doubt, a
good name and solid reputation. I have also considered the
allegation of imputing criminal offence of dealing in government
trophy and also organized crime. I have also considered defendant
behavior of not appearing for 18 months to defence his suit after
having pleaded fair comment in his written statement of defence.
I have also considered defendant failure to apologize after being
served with demand notice, and a circulation of the medium in
which it was published.

In the case of Al Haj Aboud Jumbe vs The Chief Editor, Motomoto &
others Civil Case No.24 of 1994 (supra) in assisting damages, Maina J,
held that:

Assessing damages in a suit for libel is not an easy task. Each case
must be taken and considered on its own facts. Mr. Mselem asked the
court to consider two decisions of this court in deciding how such the
Third Defendant should pay to the plaintiff.

In the case of Bonaventura Manyenga v. Tanganyika Standard and

Printpak, Civil Case 110 of 1980 of this Registry, the plaintiff was a
Commissioner for Land and the court awarded him Shs 15,000,000/=
for libel. In a subsequent case, also of this Registry, Amon Nsekela and
Another v. Athumani Hamza and Others, Civil Case No. 64 of 1986, the
Plaintiff who was the Chairman and Managing Director of National
Bank of Commerce was awarded shs. 20,000,000/= for were that they
had misused their official position. In the present case, the plaintiff is
a retired Head of State in Zanzibar and also a retired Vice President of
the United Republic of Tanzania. The allegations against him are very
serious, as I have already stated; and impute criminal offence for
treason. I take a very serious view of these false allegations against a
former Head of Government. The plaintiff has to be adequately
compensated for the damage to his reputation.

I have considered plaintiff solid reputation. According to the evidence,

the defamatory words were therefore intentional, false and without a
just cause or excuse. The violent, crude language and criminality nature
of accusation said by defendant thus, plaintiff has to be adequately
compensated for the damage to his reputation. Thus, the plaintiff is
entitled to the following relief:

i) Tshs 60 million being general damages.

ii) Tshs 10 million being exemplary or punitive damages.
iii) An injunction permanently restraining the defendant and his
agents and/or associates from making any defamatory
 statements or publishing any defamatory matter against the
plaintiff.
iv) Interest on the total decretal sum at 7% from the time of
judgment till its full payment.
v) Costs of this suit to be taxed accordingly.

Z.G Muruke
JUDGE
30/12/2016

Judgment delivered in the presence of Mr. Eric Ng’maryo and Mr.

Deogratias Mwarabu, for the plaintiff and Mr. Hekima Mwasipu for the
defendant. Right of appeal duly explained.

Z.G Muruke

JUDGE

31/12/2016