ANGELA MPANDUJI v ANCILLA KILINDA 1985 TLR 16 (HC)

ANGELA MPANDUJI v ANCILLA KILINDA 1985 TLR 16 (HC)

Court High Court of Tanzania - Dar Es Salaam

Judge Bahati J

11 May, 1985

CIVIL CAUSE 193 OF 1984 H

Flynote

Tort - Damages - Exemplary damages - When awardable.

-Headnote

The defendant, a student at the Institute of Finance Management, published of the

plaintiff also a fellow student in I the same Institute that he sold her examination

questions for Shs.1,000/=. As a result the plaintiff was dismissed from the Institute

and thus rendered incapable of obtaining

1985 TLr p17

BAHATI J

qualifications as an accountant. In addition she was dismissed from her job and

suffered disgrace and mental A torture. She filed a suit for slander and prayed for

exemplary damages in the sum of Shs.500,000/=.

Held: (i) Exemplary or punitive or vindictive damages are damages given not merely

as pecuniary compensation B 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 future;

(ii) since the plaintiff has lost her job, has suffered disgrace and mental torture

besides suffering financially C and being rendered incapable of obtaining

qualifications as an accountant and also being forced to work as a mere accounts

clerk, she is entitled to substantial and exemplary damages.

Case Information

Judgment for the plaintiff. D

Case referred to:

1. Davies v Mohanlal Karamshi Shah [1957] E.A. 352

F.H. Uzanda, for the plaintiff. E

Judgment

Bahati, J.: This is a suit for damages for slander. The plaintiff in her plaint avers that

the defendant falsely and maliciously spoke and published of the plaintiff to members

of the Tanzania Police Force, F and members of the Executive Committee of the

Institute of Finance Management Council as well as members of a Probe Committee

appointed by the said Executive Committee the following words:

.... Accountancy and Costing Examination Questions were sold to me by

Angela for Shs.1000/=. The sale took place at a Bus Stop near Urafiki Ubungo in the

morning. G

By reason of the said words the plaintiff has been injured gravely in her character,

credit and reputation and has been brought into public scandal, odium and contempt

and has suffered damage. H

In consequence of the said words the Institute of Finance Management terminated

the plaintiff's studies at the said Institute and barred her from attempting any

Institute of Finance Management examinations in future and further nullified the

results the plaintiff had achieved in April, 1984 examination. Also the National

Development I Corporation the plaintiff's employer withdrew its training award to

the plaintiff and terminated the services of the plaintiff. The plaintiff therefore

claims general damages

1985 TLR p18

BAHATI J

from the defendant in excess of Shs.200,000/= on the basis of aggravated damages as

the plaintiff demanded an A apology and reasonable compensation from the

defendant but the demand was ignored.

This case proceeded ex-parte because the defendant failed to file her written

statement of defence as ordered by B the court. In her evidence in court the plaintiff

averred that she was a student at the Institute of Finance Management hereinafter

referred to as IFM. She was dismissed from IFM after she was called and told by the

IFM authorities that she had sold examination papers. She was taken to the Police

Station in connection with this C allegation of selling examination papers. She was

also taken to a panel of investigators appointed by IFM Management. She denied

throughout to have sold any examination papers to anybody. She also appeared

before a probe Committee and again she denied selling any papers to anybody. All

the same she was dismissed D by letter dated 2nd May, 1984. When she got the

Police report, the report had the name of the person who had alleged to have bought

the papers from the plaintiff. The name was that of the defendant namely Ancilla

Kilinda. The Police report, moreover, exonerated the plaintiff. All the same she was

dismissed even from the E National Development Corporation (N.D.C.), her

employer. After that the plaintiff stayed for 4 months without a job before she

eventually got employed with the Co-operative Union of Tanganyika as an accounts

clerk whereas she would have been employed as an accountant if she had completed

her course at the IFM. The plaintiff felt very depressed and disturbed mentally

because of all these occurrences and she resorted to the law F courts through a

lawyer in order to get whatever rights she had. As a result of this episode she was

shunned by all her friends, she lost her job and missed her certificate and

encountered a variety of other problems. She was therefore praying for damages to

the tune of at least 500,000/=.

In his submission at the end of this case Mr. Uzanda, learned counsel for the plaintiff

said that the defendant had G slandered the plaintiff and that this slander was

actionable per se without proof special damages because the words complained of

impute a crime for which the plaintiff could be prosecuted and that the words had

damaged H the plaintiff in her profession. He submitted further that the plaintiff

was entitled to exemplary damages for this slander. The plaintiff, Mr. Uzanda

submitted, could recover substantial damages because she has suffered considerable

injury to her reputation and because the slander led to her dismissal from IFM and

N.D.C. and that the allegations received very wide publicity in the press and on the

radio. Further more, Mr. Uzanda said that this slander has been aggravated by the

conduct of the defendant who has shown no I

1985 TLR p19

BAHATI J

contrition nor has the defendant apologized. The plaintiff had asked for an apology

and nominal damages from A the defendant but the defendant has done nothing of

the sort. Nor did the defendant bother even to file a written statement of defence.

There is no doubt that this slander is actionable per se because it imputes the

commission of a crime and also B because it has damaged the profession of the

plaintiff. There is no doubt from the evidence given that the defamatory words were

uttered by the defendant and that the slander has caused the plaintiff to suffer damage

in her profession as well as in her reputation. For the defendant to allege that the

plaintiff sold her examination C papers is certainly to defame her exposing her to

prosecution by the Police. Similarly for the plaintiff to lose her certificate in

advanced diploma in Accounting and also to suffer dismissal from the course and her

employment is to suffer damage. Mr. Uzanda for the plaintiff contends that

exemplary damages should be awarded. Jowitt's Dictionary of English Law Second

Edition defines exemplary damages as follows: D

.... exemplary, or punitive or vindictive damages are damages given not merely

as pecuniary compensation for the loss E actually sustained by the plaintiff, but also

as a kind of punishment of the defendant, with the view of discouraging similar

wrongs in future, as in actions for defamation, malicious injuries, oppression,

continuing nuisances, etc.

I shall now consider first whether there is any defence available for the defendant in

this case. I can see none. F There is no defence to this suit unless the defendant can

prove that her allegations are true. This she has not done. The evidence has shown

clearly that it was the defendant who slandered the plaintiff and that the Police

investigated the matter and found the allegations false. There cannot be any defence

of either qualified privilege G or absolute privilege here.

Now, as for exemplary damages, I am of the opinion that they should be awarded

here. I am fortified in this view by the court of Appeal Case of Davies v Mohanlal

Karamshi Shah [1957] E.A. 352. Where it was held H inter alia that "punitive or

exemplary damages are, as their names imply, damages by way of punishment or

deterrent. They are given entirely without reference to any proved actual loss

suffered by the plaintiff". In that Court of Appeal case, the plaintiff was a Deputy

Registrar of the Supreme Court at Mombasa who had had libels I published of him

by the defendant which contained serious allegations of dishonestly, wilful

misconduct in the course of his official duties, and professional misconduct.

1985 TLR p20

The libels were published to the Chief Justice of Kenya, the Attorney General, a Judge

at Mombasa etc. The A Court of Appeal for East Africa awarded him Shs.10,000/= as

damages. In this case the plaintiff is asking for at least Shs.500,000/= as damages since

she has lost her job and has suffered disgrace and mental torture besides B suffering

financially and being rendered incapable of obtaining qualifications as an accountant

and also being forced to work as a mere accounts clerk. Considering all these factors

in their totality, I agree that the plaintiff is certainly entitled to substantial and

exemplary damages. I would award her Shs.150,000/= as damages. C

I therefore enter judgment for the plaintiff in the sum of Shs.150,000/= with costs as

prayed in the plaint.

Judgment for the plaintiff.

1985 TLR p20

D