I.S. MSANGI v JUMUIYA YA WAFANYAKAZI AND WORKERS DEVELOPMENT CORPORATION 1992 TLR 259 (CA)

I.S. MSANGI v JUMUIYA YA WAFANYAKAZI AND WORKERS DEVELOPMENT CORPORATION 1992 TLR 259 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Makame JJA, Kisanga JJA, Omar JJA

26th August, 1992 H

Flynote

Tort - Defamation - Defence of qualified privilege - Publication to a person not

having corresponding interest and duty to receive the publication - Whether defence

available

Labour Law - Employment - Wrongful termination - Employee's right to be heard

before I termination.

1992 TLR p260

-Headnote

The appellant sued the respondents in the High Court for defamation and wrongful A

termination of employment. The basis of his suit for defamation was that a

defamatory statement relating to him was published to persons not having

corresponding interest and duty to receive the publication. The defamatory statement

was contained in a probe B team report which instead of being published to the

general council of JUWATA which had ordered the probe was published to Kamati ya

Usimamizi ya Baraza Kuu (KUBK) and the board of directors of the Workers

Development Corporation (WDC) of which he was general manager. And the basis

for his complaint against wrongful C termination was that he was not given an

opportunity to be heard by the body which terminated his employment. KUBK did

give him an opportunity to be heard and in the end recommended that the appellants

employment be terminated and the board of directors of W.D.C. terminated his

services without giving him an opportunity to be heard. The trial court found the

complaints to be baseless on the following grounds: D (a) that the respondents were

availed the defence of qualified privilege; and (b) that the appellant was afforded an

opportunity to be heard by KUBK. On appeal to the Court of Appeal.

Held: (i) Where a person raises the defence of qualified privilege on the ground that

E he had a duty to make the offending statement it must further be shown that the

statement was made in good faith and that the person to whom it was made had a

corresponding interest and duty to receive it; F

(ii) the report containing defamatory statements was ordered by the general

council of the first respondent and was expressly required to be submitted to that

body. Publication of the report to members of KUBK when they were not supposed to

receive it was wrong;

G (iii) it was necessary to afford the appellant the opportunity to be heard by the

body which ultimately decided his fate i.e. the board of directors, because there can

be no guarantee that given that opportunity his defence before the board of directors

would necessarily be the same as his defence before the probe team.

Case Information

Appeal allowed. H

[zJDz]Judgment

Makame, Omar and Kisanga, JJ.A.: The appellant sued the first respondent, JUMUIYA

YA WAFANYAKAZI TANZANIA (JUWATA), for defamation, and in I the same

plaint he also sued the second respondent, the Workers Development

1992 TLR p261

MAKAME JJA, OMAR JJA, KISANGA JJA

Corporation (W.D.C) for wrongful termination of his employment. The second A

respondent in a counter-claim sued for unrefunded loans which the appellant had

obtained from the said respondent with or without authorization. The High Court in

which the action was brought dismissed both the claim and the counter-claim and

made an order for costs against the appellant. The appellant is now appealing, but the

B second respondent has not appealed against the dismissal of its counter-claim.

The facts of the case may be stated briefly as follows: The appellant was employed by

the W.D.C. as its general manager. As part of his duties, the appellant prepared and C

submitted a report of the W.D.C. and its subsidiary companies at the annual meeting

of the general council of JUWATA: it is the general council of JUWATA, consisting of

two to three hundred members, which supervises the affairs of the W.D.C. As the

appellant was trying to present his report before the general council, members of the

council felt D that the report involved certain inadequacies or unsatisfactory matters

which made it necessary to appoint a probe team of seven members to examine the

report and submit their findings to the general council at its next meeting. After the

report of the probe team was prepared it was presented to the Secretary-General of

JUWATA who, E however, submitted it, not to the general council as had been

directed, but to the Kamati ya Usimamizi ya Baraza Kuu (KUBK) consisting of 20 to

30 members, and also to the Board of Directors of the W.D.C.

Upon receiving the probe report, the KUBK required the appellant to appear before F

it to defend himself against allegations made against him in the report and he did so.

In addition to the appellant's defence the KUBK also received from the board of

directors of the W.D.C. their comments on the probe report. After that the KUBK

proceeded to appoint a select committee to scrutinize further the probe report in the

light of the G appellant's defence and the comments by the board of directors of the

W.D.C., and then report back to the KUBK. The select committee accordingly

submitted its report and after discussing and adopting it the KUBK recommended the

termination of the appellant's employment; acting on that recommendation, the

board of directors of the H W.D.C. accordingly terminated the appellant's

employment.

The appellant's claim for defamation was essentially based on the publication of the

probe report to the bodies of persons other than that which had ordered or directed

such probe. And the basis for his complaint against wrongful termination was that he

I was given

1992 TLR p262

MAKAME JJA, OMAR JJA, KISANGA JJA

no opportunity to be heard by the body which terminated his employment. A

The trial judge dismissed the appellant's claim for defamation on the ground that the

first respondent had the defence of qualified privilege. He dismissed the claim for

wrongful termination on the ground that such termination was justified in the light of

the B appellant's proved or admitted misconducts.

At the hearing of this appeal the appellant was represented by Mr. Lukwaro while

Mr. Muccadam appeared for the respondents. Mr. Lukwaro filed a total of eight

grounds of appeal challenging the dismissal of his client's suit by the High Court and

the failure by C that Court to award him costs after dismissing the counter-claim by

the second respondent.

The learned judge found that the report by the probe team did contain statements

which were defamatory of the appellant. When dealing with that issue he said inter

alia: D

There is no doubt that some of the publication is defamatory. Matters like

adultery imputations and fraud allegations are certainly defamatory.

We are satisfied that this finding was quite justified. There was ample evidence to E

support it. However, he misdirected himself by saying that the probe team submitted

its report to the general council of JUWATA. For, there was abundant evidence of the

appellant and the defence witness, one Mr. Mashashi, that the report by the probe F

team was submitted to the KUBK, not to the general council of JUWATA.

As stated earlier, the learned judge found that the first respondent had the defence of

qualified privilege available to it. This was so because, in his view, "there was a public

G duty to investigate into the activities of the W.D.C. and its general manager". He

took the view that once there was that duty then in the absence of any malice, and

indeed the appellant conceded the absence of any malice on the part of members of

the probe team, the occasion was one of qualified privilege. H

It was established by the evidence that the probe team was appointed by the general

council of JUWATA to probe into the affairs of the W.D.C. including those of the

appellant as its general manager, and report its findings back to the general council of

JUWATA. As already pointed out, however, the report of the probe team was I

submitted not to the appointing authority, the general

1992 TLR p263

MAKAME JJA, OMAR JJA, KISANGA JJA

council of JUWATA, but to the KUBK. It is quite apparent that the general council A

of JUWATA and the KUBK are two different bodies. The former has two to three

hundred members while the latter comprises 20 to 30 members only. The two bodies

also differ in their functions. The general council of JUWATA supervises the affairs of

the W.D.C. while the KUBK is under the general council and deals with matters of B

day-to-day administration.

Where a person raises the defence of qualified privilege on the ground that he had a

duty to make the offending statement it must further be shown that the statement

was made in good faith and that the person to whom it was made had a corresponding

C interest and duty to receive it. Admittedly in the instant case the probe team made

the defamatory statements in the performance of the duty imposed on it by the

general council of JUWATA, and it was common ground that these statements were

made without malice. But the question is: What corresponding interest and duty did

the D KUBK have to receive the report? The report was ordered by the general

council and was expressly required to be submitted to that body. The circumstances

leading to the KUBK receiving the report are not at all apparent. The KUBK was not

shown to be the disciplining authority of the appellant, and certainly it was not the

authority vested E with the power of appointing or terminating the services of the

appellant; on the evidence such powers were vested in the board of directors of the

W.D.C. It seems plain, therefore, that the probe report was wrongly published to

members of the KUBK when they were not supposed to receive it i.e. when they had

no corresponding F interest and duty to receive it, and to that extent the defence of

qualified privilege cannot succeed.

As regards the issue of terminating the appellant's employment, there was clear

evidence that this was done by the board of directors of W.D.C. The appellant G

concedes that this was the proper authority to exercise that power, but his complaint

is that he was afforded no opportunity to be heard by that body before the latter

terminated him. In dismissing the appellant's claim the trial judge took the view that

the appellant's termination was justified in the light of the appellant's proved or

admitted H misconducts, such as the loaning of money to himself without authority.

With due respect to the learned judge, however, this did not do away with the need

to afford the appellant the opportunity to be heard. For one thing, all along the

appellant was protesting his innocence against the allegations which were made

against him. His I admission of some of the allegations were invariably accompanied

by explanations

1992 TLR p264

MAKAME JJA, OMAR JJA, KISANGA JJA

designed to absolve him. In those circumstances if the disciplining authority was A

minded to impose a sanction on him, as indeed it did, it was right and proper, in

accordance with the principle of natural justice, to hear him before condemning him.

Indeed, even if his admissions of the allegations before the probe team were

seemingly unequivocal, we think that it was still necessary to afford him the

opportunity to put B up his defence before the board of directors although it would

necessarily be the same as his defence before the probe team.

Mr. Muccadam, learned counsel for the respondents, contended before us and also in

C the High Court that the appellant was duly afforded the opportunity to be heard

when he was called upon to defend himself before the KUBK. With due respect to the

learned counsel, however, this argument cannot be sustained. First, the KUBK was

not the authority which imposed the sanction being complained against. The sanction

was D imposed by the board of directors of the W.D.C.; the appellant's appearance

therefore ought properly to have been before that body. What is more, and this seems

to be even more serious, the evidence shows that the substance of the appellant's

defence was not placed before the board of directors. The Deputy Secretary-General

of JUWATA, E Mr. Elias Mashashi stated in his evidence for the defence that the

report of the KUBK (Ex. D1) was not submitted to the board of directors of the

W.D.C. This means that the board of directors terminated the appellant's employment

purely on the strength of a bare recommendation by the KUBK, and that was totally

wrong. F

We are satisfied that the learned trial judge wrongly dismissed the appellant's claims

for defamation and for wrongful termination of his employment.

The second respondent's counter-claim was dismissed but nothing further was said

about. The general rule in civil cases is that costs follow the event. That is to say the

G successful party is entitled to recover his costs unless there are grounds for

ordering otherwise. In this case the appellant was the successful party, as far as the

counter-claim was concerned, and according to the general rule he was entitled to

recover his costs. H The trial judge gave no reason, and we could find none, for

departing from the general rule. On that account we find that the appellant was

wrongly denied his costs following the dismissal of the counter-claim against him.

In the result we allow the appeal. The decision of the High Court is set aside, and

instead thereof we enter judgment for the I

1992 TLR p265

appellant as prayed in the plaint. We award shillings 200,000/= damages for the A

defamation and shillings 50,000/= for the wrongful termination of employment. The

appellant shall have his costs both in this court and in the Court below, the latter to

include costs in respect of the dismissed counter-claim.

B Appeal allowed.

1992 TLR p265

C