K. HASSANI v KITHUKU AND CHALI 1985 TLR 212 (HC)

K. HASSANI v KITHUKU AND CHALI 1985 TLR 212 (HC)

Court High Court of Tanzania - Tanga

Judge Sisya J

August 22, 1983

CIVIL CASE 22 OF 1981

Flynote

Torts - Defamation - Allegations of witchcraft uttered before villagers who believe in

B witchcraft - Whether defamatory.

Torts - Defamation - Slander - Allegations of killing by witchcraft and possessing C

instruments of witchcraft - Whether actionable per se.

Torts - Damages - Amount prayed for without showing any special damage suffered -

General damages.

-Headnote

The plaintiff claimed damages for slander. It was alleged,and proved ex-parte, that

the first defendant, claiming to have occult powers which enabled him to spot out

and D emasculate those practising witchcraft, invaded the plaintiff's compound

accompanied by a large crowd of villagers. He then announced to the crowd that the

plaintiff had witchcraft powers and instruments with which he was killing the

residents of the village, and that the food he used to prepare and serve his guests as

Maulid celebrations actually E consisted of goats' excreta and baboon and hyena

meat.

Held: (i) The allegations that the plaintiff practised witchcraft, uttered, as they were,

to a crowd of villagers who believe in witchcraft, are the kind of words likely to

expose the plaintiff to ridicule, hatred or contempt, and are calculated to injure him

in his social F standing in his community; they are therefore defamatory;

(ii) while slander is not always actionable per se, the slandering in this case is

so actionable because of the imputation that the plaintiff killed human beings, a crime

punishable with death, and that he possessed instruments of witchcraft, a crime

punished G by imprisonment under the Witchcraft Ordinance;

Case Information

Judgment for the plaintiff

No cases referred to. H

Judgment

Sisya, J.: This is an action for slander. It has been brought by the plaintiff, Karoyo

Hassani, but prosecuted by his son, Juma Kumba, to whom he has donated a power of

attorney on the I

1985 TLR p213

SISYA J

grounds of his own old age, ill health and personal discomfort of attending the Court.

A

The plaint is, to say the least, crude and home made. At most it could be the work of

some aspiring bush lawyer. The donee of the power of attorney, i.e. Juma Kumba,

himself appears, without being derogatory to him, to be as raw as the plaint. I chose

to B accommodate him and his plaint all the same because his position is, to my

mind, a true representation of the hard facts of our life and also because the said

plaint discloses a cause of action. I fully subscribe to the view that substantive justice

should never be sacrificed for mere technicalities of the procedural law. The words

complained C of and which the first and/or second defendant uttered in relation to

the plaintiff were to the effect that he, i.e. the plaintiff, was wizard; he has a two

legged pot in his house which turned into snakes and bit people to death; he also has a

drum which was made of the genitals of a woman and its drum stick was a male

organ; and that the rice and meat D which he prepared and served guests whenever

he celebrated 'Maulid' at his house were actually excrements of goats and meat of

baboons, respectively.

Both respondents were duly served with copies of the plaint but they failed and/or

neglected to file written statements of defence. The hearing, therefore, proceeded

and/or was conducted ex parte. E

Three witnesses gave evidence on the side of the plaintiff. These were Juma Kumba

(PW1), a neighbour of his, Msafiri Martin (PW2), and his i.e. Juma's older brother,

Hamisi Kumba (PW3). Their story is the same and it reveals a somewhat disgusting

and absolutely nauseating episode that befell the plaintiff at his own house on

22/8/81. From F the totality of their evidence it becomes clear that the first

defendant is a native medicineman who claims to possess occult powers which enable

him to spot out and emasculate those who practice witchcraft. During the relevant

period he was moving from village to village, apparently on the invitation of the local

residents and/or, to the G very least, with the connivance of the local village

governments. According to PW3, the second defendant was first accused's

companion.

On 22/8/81 during the morning hours the first accused was accompanied by a noisy

multitude which was chanting "To Karoyo's!" The said multitude comprised males

and H females, young and aged. Those in the frontline bore a coffin like object.

They also carried with them some pails of water. Msafiri (PW2) saw and heard the

crowd as it passed near his house at 6.00 a.m. He was then cleaning his teeth.

Thinking that there was a funeral he, eventually, decided to and did follow the

crowd. Juma (PW1) was I then at his father's house with his father, the plaintiff,

when he heard and saw the crowd approach.

1985 TLR p214

SISYA J

The evidence of Juma and Msafiri, which stands unopposed, shows that when the

crowd A arrived at the plaintiff's house the plaintiff got out of his house. According

to Juma he followed suit because he was worried as he did not know where the 'dead

body' was being taken to. The first defendant then ordered that the 'coffin' should be

carried round the plaintiff's house fourteen times. This was done and then it was

placed at the B plaintiff's door. At that stage the plaintiff querried as to what it was

that they were doing to him. The first defendant silenced him by telling him to keep

quiet, adding that he would see the outcome. Thereafter, the first defendant told girls

who were in the crowd to go inside the house and urinate in the pails. This they did

and then their urine was C sprinkled at every corner in the room as kafara, i.e. for,

as first defendant announced, neutralising purposes. After that the first defendant

turned to the plaintiff and began to undress him in public. The plaintiff asked again

as to what wrong he had done. The first D defendant's response was as at first: He

silenced the plaintiff and added that he would see the outcome. The first defendant

removed the plaintiff's cap, coat, kanzu and shoes. It seems the first defendant

wanted to continue stripping the old man of his complete attire. According to Hamisi

(PW3), who already had had a confrontation with the defendants in another village a

few days earlier, he arrived at the plaintiff's house at the time when the latter was

resisting having his shirt removed as well. Although he saw the E local village

chairman, one Omari Hassani, and the local militiamen among the crowd the sight of

the plaintiff being harassed by the first defendant embittered him. Fearing that he

may, finally, be forced 'to take the law into his own hands' he left the place

immediately and proceeded to the District Headquarters at Muheza and reported the

F matter to the District Party and Government officials.

Juma and Msafiri told the Court that after the first defendant had succeeded in having

the plaintiff's shoes removed he, i.e. first defendant, then addressed the plaintiff

within their hearing, as follows: 'You are finishing Maramba residents. I will talk

about your G wizardry so that the people may know about it well. The water and

urine which the girls spilled in your house is kafara so that whatever you have inside

there is neutralised'. After that the first defendant turned to the crowd and began to

announce to them that there was a pot in the house which contained witchcraft; that

there was a second pot H with two edges in the bed room; that the said two edges

used to turn into vernomous or deadly snakes which bit people; that there was a small

drum in the roof which was made of female genitals; that its drum stick was a penis;

and that its purpose was for summoning all witches and wizards. After his address

the first defendant turned to the plaintiff and asked him if he, i.e. first defendant,

should take out all these instruments of I witchcraft from the house. The

1985 TLR p215

SISYA J

plaintiff's reply was to the effect that since his permission had hitherto not been

sought A there was no point in doing so at that stage. He added that the first

defendant could proceed to do whatever he wanted to do. The first defendant said

that he would not take the said things out on that day because circumstances were

not favourable. He added that he would do so on the following day. B

Both Juma and Msafiri told the Court that the first defendant also told the plaintiff

that the rice which he was preparing and feeding people during Maulid celebrations

was no rice at all; it was goats' droppings, and the meat was not beef at all but meat of

baboons and hyenas. According to Msafiri at this stage he became disgusted and he

left and C went away. He, i.e. Msafiri, told the Court that he used to celebrate

Maulid festivals at the house of the plaintiff whom he described as a respectable old

man.

Juma (PW1) told the Court that the plaintiff urged that whatever could be done

should be done there and then. The first defendant, however, remained adamant and

insisted D that he would take out the things, presumably for display and consequent

destruction, on the morrow at 8.00. He, i.e. the first defendant, then announced to

the crowd to disperse and return on the following day. Juma went on to tell the

Court what happened to the plaintiff later that very evening, in the night, and on the

following day. The said E facts, as also do some of those already narrated here in

above, reveal and/or are relevant to the tort of trespass - both to the person and to

property - which is not the subject matter, or a part thereof, of this instant

proceeding. I, therefore, do not see the point of recounting them. Suffice it to say

that had he so wished and/or so acted the F plaintiff could have properly brought up

a suit for trespass as well in the present suit.

Be it as it may, as aforementioned, this suit was not contested. The defendants may

have left it to their professed occult powers (or was it the girls' urine which was

sprinkled in the plaintiff's house?) to neutralise the plaintiff's desire to seek legal

redress and/or G protect them from the requisite law suit. If so then they must be

living in a fools' paradise. As the position stands the evidence on the plaintiff's side

remains unchallenged and uncontradicted and I have absolutely no reason

whatsoever to disbelieve it.

I framed out four issues in this case and these are: H

1. Did the defendants, jointly or severally, utter the words complained of?

2. Are the said words defamatory of the plaintiff?

3. If they are, are they actionable per se? I

4. To what reliefs are the parties entitled?

1985 TLR p216

SISYA J

On the first issue I am satisfied, and I so find, that the first defendant did utter the

words A complained of. There is, however, no evidence to show that the second

defendant was present on 22/8/81 at the plaintiff's house. Hamisi (PW3) mentioned

that he saw him, i.e. second defendant, in the company of the first defendant but that

was at Daluni and not Maramba. The time was also different in that, according to

PW3, that was B about five days before the incident at the plantiff's house. Juma

(PW1) also talked of the first accused's companion or student. He, however, did not

mention the name of the second accused. In the final event I find that the first

defendant uttered the said words alone and I find this as a fact. C

Now, turning to the second issue, I entertain no doubt whatsoever in my mind that

the words which the first defendant said of the plaintiff and which the latter has

complained of are defamatory of the plaintiff. They are the type of words that are

likely to expose the plaintiff to hatred, ridicule or, contempt or calculated to injure

him in his social D standing in his community and I find this as a fact. There can be

no doubt that these words were spoken to a crowd of villagers who believe in

witchcraft - a scourge of our rural as well as part of the urban communities. Needless

to say, this was done maliciously as the first defendant knew or had reason to know

of the falsity of his words. In short, I answer the second issue in the affirmative. E

To put it briefly slander is or consists of defamatory matter merely spoken. Under

common law, except in four cases, the plaintiff in an action for slander must prove

special damage. The four exceptional cases are: F

1. Where the words impute to the plaintiff the commission of a criminal

offence punishable by imprisonment.

2. Where they impute to him a contagious or infectious disease.

3. Where they are spoken of him as a professional or businessman.

4. Where they impute unchastity or adultery to a woman or girl. G

In the instant matter the words impute to the plaintiff the killing of human beings, of

malice aforethought, which is a crime which carries capital punishment. The words

also imputed to the plaintiff the possession of instruments of witchcraft, to wit, the

two pots, H the drum made of a female organ and its male-organ drum stick, which

is a criminal offence punishable by imprisonment under the Witchcraft Ordinance.

The words that the plaintiff was practising witchcraft on his fellow residents of

Maramba and that he had instruments for that purpose in his house will therefore,

support an action for slander, I without special damage and I so hold. This disposes

of the third issue.

1985 TLR p217

Finally, I now turn to the issue of the reliefs to which the parties are entitled. In his

plaint A the plaintiff prays for Shs.25,000/= which he does not classify as general or

special damages. The evidence produced does not show that the plaintiff suffered any

special damage as a result of the slanderous words. In Winfield and Jolowicz on Tort,

9th B Edition, at page 249 and 250 the learned authors stated that "where there is no

need to prove special damage in defamation, the plaintiff can recover general damages

for the injury to his reputation without adducing any evidence that it has in fact been

harmed, for the law presumes that some damage will arise in the ordinary course of

things. It is enough that the immediate tendency of the words is to impair his

reputation". This C passages describes the correct position at law on this aspect of

the case so tersely that I, with gratitude, adopt it as my own.

Taking into account the fact that the plaintiff was, as described by Msafiri (PW2), a

respectable old man who used to celebrate Maulid in accordance with his religious D

beliefs and also the number of specific but false and malicious allegations made by the

first defendant and, in all the circumstances of the case I am of the considered view

that the amount of Shs. 25,000/= as general damages will meet the justice of the case.

In the final result I give judgment for the plaintiff as prayed with regard to the first E

defendant. No case, however, has been made out against the second defendant. The

claim against him is consequently dismissed. The first defendant will bear the costs of

this suit.

F Judgment for the plaintiff.

1985 TLR p217

G