Japhet Mwangwa v. Mtemi Senge, Civ. App. 18-D-68, 7/11/68, Hamlyn J.

 

Japhet Mwangwa v. Mtemi Senge, Civ. App. 18-D-68, 7/11/68, Hamlyn J.

The plaintiff brought an action for defamation, alleging that the defendant had instituted criminal proceedings against him by filing a complaint in the Primary Court alleging that the plaintiff had threatened to kill him, c/ss 89 (1) (a), Penal Code. It also appears from testimony in the present case that the defendant communicated this information to persons other than police and court officials. The criminal proceedings against the plaintiff were withdrawn after the defendant stated he pardoned the plaintiff and wished to withdraw his charge. The trial court found that the defendant’s allegation was defamatory by innuendo in that the words implied that the plaintiff was “a potential assassin or murderer …. Not fit to live in decent society and ….. That he should be shunned by all peace-loving citizens, since he was violent”, and would therefore tend to lower him in the estimation of right – thinking members of society generally. There was no plea of justification (truth) nor was privilege raised, although the defendant pleaded “good faith”, apparently meaning no malice. However the trial court found he had acted with malice. The plaintiff was awarded Shs. 6,000/-.

Held: (1) The trial court erred in finding malice without sufficient evidence; but, unless the occasion is one of qualified privilege, a defamatory statement is actionable without a showing of actual malice in the sense of a wrongful intent. The word maliciously is used in the pleadings simply to indicate that the publication of the statement was a wrongful act, and does not relate to the defendant’s intention.

          (2) The trial court correctly held that the allegation was defamatory by innuendo.

          (3) Since the defendant “published it by communication of the matter not only to the court officials but also to other persons” there was a sufficient publication. [Note: the court does not make it clear which publication is being relied on, but since a formal complaint to a court is absolutely privileged, so that even malice will not destroy the privilege, it appears that the communication of the allegation to persons in the community was the actionable publication].

            (4) Damages to be reduced to Shs. 3,500/-. No special damages was alleged or proved, but his is not necessary where there is an allegation of a criminal offence, for whether libel or slander such an allegation of a criminal offence is actionable per se. The court stated “the mere probability that consequences injurious to the respondent may ensue from the defamation complained of entitled him to compensation. But the trial court erred on the side of generosity, and the judgment was “so excessive as to warrant interference on the part of this court.” The court said: “It is always difficult to assess by monetary standards an event which is of a non-material nature” but the trial court properly considered the plaintiff’s present office of Regional Game Warden, and the fact that he had been “a chief for some seventeen years and was consequently of some dignity.” The court commented: “this office has now been discontinued, and it would therefore have been wrong to have paid regard to his rank as if it still obtained. But to view it as a past measure of present importance is permissible in the assessment of any damages” which he has suffered.

            (5) The fact that the defendant had withdrawn his charge “might mitigate damages if he brought to the notice of the persons to whom publication had been made that the allegations were untrue. This he has not done and the record shows that he still maintains that the allegations are correct.”